McAdam v Straschko

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
Asia Pacific International Pty Ltd v Peel Valley Mushrooms Ltd [1999] 2 Qd R 458

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.

The appeal in McAdam v Straschko involved the applicant, McAdam, and the respondent, Straschko. The case originated as a minor civil dispute in the Magistrates Court of Victoria, which had been appealed to the Court of Appeal. McAdam sought leave to appeal against the dismissal of his application for a stay of the original decision. The primary issue before the Court of Appeal was whether there were sufficient grounds to grant a stay of the original decision in the Magistrates Court.

The Court of Appeal carefully considered the application for leave to appeal and the merits of the stay. The Court examined the criteria for granting a stay, which typically includes factors such as the likelihood of success on the merits, the existence of a substantial question of law, and whether the applicant would suffer significant prejudice if the stay were not granted. The Court determined that McAdam had not demonstrated a sufficient likelihood of success on the merits or a substantial question of law warranting a stay. Furthermore, the Court found that McAdam had not shown that he would suffer significant prejudice if the stay were not granted.

Based on the Court's reasoning, the application for leave to appeal and the request for a stay were refused. The Court held that the grounds for a stay were not met, and therefore, the original decision of the Magistrates Court would stand. Consequently, McAdam's appeal was dismissed, and no further appeal could be taken regarding the stay of the original decision.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established