Masinello v Parker and Anor (No.1)
[2013] QCATA 324
•8 November 2013
| CITATION: | Masinello v Parker & Anor (No.1) [2013] QCATA 324 |
| PARTIES: | Stamatina Masinello (Appellant) |
| v | |
| Kenneth Parker and Alexis Parker (Respondents) |
| APPLICATION NUMBER: | APL399-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 1 November 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Forbes, Member |
| DELIVERED ON: | 8 November 2013 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application for a stay of operation of the Tribunal’s decision in MCDT 1640 of 2013, delivered on 3 September 2013, is dismissed. |
| CATCHWORDS: | MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – Residential Tenancies and Rooming Accommodation Act 2008 – order for refund of rent – application for leave to appeal – application for stay of primary decision – whether stay should be granted – onus on applicant not discharged – stay refused Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 22, 32, 145, 152 Carrie v Department of Communities (Housing and Homelessness Services) [2010] QCATA 15 Queensland Health v Information Commissioner & Anor [2011] QCATA 66 Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
The respondents (the Tenants) leased premises at Hamilton, Brisbane, from the applicant (the Landlady) from 12 May 2012 to 11 May 2013 for $2,100 per week. They vacated the property on 10 May 2013.
It is common ground that the tenancy was governed by the Residential Tenancies and Rooming Accommodation Act 2008 (the RTRAA).
During the tenancy the Tenants complained to the Landlady about various defects in the dwelling house, including defective lighting in several rooms, and a faulty dishwasher.
On 1 July 2013 the Tenants initiated a minor civil tenancy dispute claiming (so far as is now material) a “rent reduction due to faulty equipment”.
On 3 September 2013 an Adjudicator found that, having regard to the “up-market” character of the accommodation, and correspondingly high rent, the Tenants were entitled to a reduction of rent, pursuant to section 94 of the RTRAA. He ordered the Landlady to credit the amount of $7,748 to the Tenants’ rent account, or to refund that amount to them, by 5 November 2013.
The Landlady applies for leave to appeal against that decision, and in the meantime, she seeks a stay of the Adjudicator’s orders pending a decision of the appeal.
The matter has been referred to me to decide the stay application, and the application for leave to appeal.
Should a stay be granted?
The more immediate question is whether a stay should be granted, and this decision is limited to that issue. The application for leave to appeal will be considered in the near future.
The lodgement of an appeal does not ipso facto suspend the operation of the primary decision.[1] Three sections of the QCAT Act confer a discretion to grant a stay, namely sections 22, 145, and 152. Section 145(2) applies in this case. No variation of the general law is indicated.[2]
[1] QCAT Act s 145(1).
[2] Carrie v Department of Communities (Housing and Homelessness Services) [2010]
QCATA 15 at [6]; Queensland Health v Information Commissioner & Anor [2011] QCATA 66.
An appellant who seeks a stay bears the onus[3] of displacing a presumption that the successful party should have the benefit of his judgment at once.[4] The question is whether there is some special feature of the case that warrants a departure from that principle. One must consider the prima facie strength of the appellant’s case, whether the appellant will suffer some irremediable disadvantage if a stay is refused, and the overall balance of convenience.[5]
[3] Croney v Nand [1999] 2 Qd R 342.
[4] Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220 at
222; Berry v Green [1999] QCA 213 at [3].
[5] Asia Pacific International Pty Ltd v Peel Valley Mushrooms Ltd [1999] 2 Qd R 458;
Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453 at 455; Legal Services Commissioner v Baker [2005] QCA 482 at [30]; Deputy Commissioner Stewart v Kennedy [2011] QCATA 254 at [17].
It appears that the Landlady has an arguable case, but there is no evidence that she would suffer any significant financial hardship if required to comply with the primary decision before her substantive application is considered. She does not suggest that she may be unable to recover the money paid if her appeal succeeds.[6] There is no suggestion that the Tenants are financially unreliable people. The only plea for present purposes is that the Adjudicator fell into error.[7] If that alone were a compelling reason for a stay, few such applications would fail.
[6] Cf Jennings v Design and Procure Pty Ltd [2010] QCATA 36 at [14].
[7] Application to stay a decision, filed 13 September 2013, Part C.
I do not find that the Landlady has discharged the onus that the present application places on her. The balance of convenience favours the Tenants. The Tribunal’s discretion should be exercised accordingly. The application for a stay will be dismissed.
ORDER
The application for a stay of operation of the Tribunal’s decision in MCDT 1640 of 2013, delivered on 3 September 2013, is dismissed.
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