McAdam v Straschko
[2013] QCATA 301
•1 October 2013
| CITATION: | McAdam v Straschko & Anor [2013] QCATA 301 |
| PARTIES: | Nina McAdam Neil McAdam (Applicants) |
| v | |
| Lidia Straschko John S Carter (Respondents) |
| APPLICATION NUMBER: | APL393-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Stilgoe, OAM |
| DELIVERED ON: | 1 October 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Application for a stay refused. |
| CATCHWORDS: | APPEAL – LEAVE TO APPEAL - MINOR CIVIL DISPUTE – STAY – whether grounds for stay of original decision JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255 Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 |
APPEARANCES and REPRESENTATION (if any):
The appeal tribunal heard and determined this matter on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.
REASONS FOR DECISION
Ms Straschko and Mr Carter rented a house from Mr and Ms McAdam. They filed a claim for compensation in the tribunal, claiming that the house was unclean and had a number of items that did not work or were not accessible. A Magistrate, sitting as an ordinary member of the tribunal, ordered Mr and Ms McAdam credit Ms Straschko and Mr Carter’s rent account by $990.
Mr and Ms McAdam want to appeal that decision. They have also applied for a stay of the learned Magistrate’s order.
To succeed in an application for a stay Mr and Ms McAdam must show good reason for the stay to be granted[1] and that it is an appropriate case to grant a stay.[2] The Court of Appeal has set out the factors that the tribunal should consider when deciding a stay[3]. Does the applicant have a good arguable case on appeal? Will the applicant be disadvantaged if a stay is not ordered? Will the competing disadvantage to the respondent, should the stay be granted, outweigh the disadvantage suffered by the applicant if the stay is not granted? Will the applicant’s success on appeal be rendered nugatory if the order is not stayed in the interim?
[1]JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255 at 259.
[2]Asia Pacific International Pty Ltd v Peel Valley Mushrooms Ltd [1999] 2 Qd R 458.
[3]Jerrard JA in Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 at [8].
Mr and Ms McAdam’s application for a stay does not address any of these points. They say, simply, that the learned Magistrate was wrong. They have not demonstrated that they will be disadvantaged if I do not order a stay. They have not demonstrated that the appeal will be of no effect if the stay is not granted. The application for a stay is, therefore, refused.
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