Partington v Urquhart

[2013] QCATA 326

CITATION: Partington v Urquhart [2013] QCATA 326

PARTIES:	Mr Phillip Partington Mrs Evelyn Partington (Applicants/Appellants)
V
Mr John Urquhart t/as Hart Renovations (Respondent)

APPLICATION NUMBER: APL131-13

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe OAM, Senior Member

DELIVERED ON: 1 July 2013

DELIVERED AT: Brisbane

ORDERS MADE:      1.    The application to stay a decision is refused.

CATCHWORDS:

APPEAL – BUILDING – where application to stay decision – where long standing dispute

Queensland Civil and Administrative Tribunal Act2009, s 145(2)

Commissioner of Taxation (Cth) v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220

JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255

Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685

Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 at 4

APPEARANCES and REPRESENTATION (if any):

The 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

1. On 19 February 2013, the tribunal ordered that Mr and Mrs Partington pay Mr Urquhart almost $215,000 plus costs. The learned Senior Member found that Mr and Mrs Partington had retained a progress payment, due to Mr Urquhart, for almost four years.

2. Mr and Mrs Partington have applied to appeal the learned Senior Member’s decision, and have applied for a stay of that decision.

3. This Tribunal has power to make an order staying the operation of a decision being appealed against, until that appeal is finally decided: Queensland Civil and Administrative Tribunal Act2009, s 145(2). The normal rule is, of course, that a litigant is entitled to the ‘fruits’ of the litigation, a phrase which typically includes a judgment.[1]  While it has been suggested that an applicant for a stay must establish ‘special circumstances’[2] before an order will be made, it has also been said that the discretion is unfettered and that the applicant must demonstrate a basis for a stay, with particular emphasis upon such matters as the balance of convenience, and the competing rights of the parties.[3]

   [1]Commissioner of Taxation (Cth) v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220 at 222-3 per Dawson J.

   [2]JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255 at 258.

   [3]        Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-5.

4. In Elphick v MMI General Insurance Ltd & Anor[4], Jerrard JA observed that applicants should demonstrate a number of things. Mr and Mrs Partington should demonstrate a good, arguable case on appeal. Mr and Mrs Partington must demonstrate that they will be disadvantaged if a stay is not ordered and that the competing disadvantage to Mr Urquhart, should the stay the be granted, does not outweigh the disadvantage they suffer if the stay is not granted. Mr and Mrs Partington should also show that the success on appeal would not be rendered nugatory if the order appealed from is not stayed in the interim.

   [4] [2002] QCA 347 at 4.

5. Mr and Mrs Partington’s main complaint about the learned Senior Member’s decision is that he did not consider the evidence and/or that he simply accepted the experts’ evidence. The learned Senior Member’s decision is carefully and thoughtfully written. He considered all of the evidence before him. He considered each of the matters raised in the application for leave to appeal. The learned Senior Member did consider the merits of Mr and Mrs Partington’s cross claim at [85] of his reasons. Although Mr and Mrs Partington’s case on appeal is arguable, I am not persuaded that it is a good case. They raise no particular point which is compelling.

6. There is no doubt that Mr and Mrs Partington will be disadvantaged by the payment of a significant amount of money to Mr Urquhart. They say that they have spent $650,000 in actual building cots for the renovation of their house and it is still unfinished. They point to the substantial legal costs they have paid. They submit that, if they have to pay $215,000 to Mr Urquhart they will have spent $900,000 for an incomplete and defective house. They say they do not have the funds to pay Mr Urquhart. They say that they will have difficulty in recovering money from Mr Urquhart if their appeal is successful. Mr and Mrs Partington have not provided any evidence to the appeal tribunal to support their submissions. Most of these matters are, sadly, an ordinary incident of engaging in protracted and complex litigation.

7. The appeals tribunal does not have evidence about Mr and Mrs Partington’s financial position. It does not have evidence that Mr Urquhart would be unable to repay the money.

8. Mr Urquhart has been denied payment for work done since 2009. Mr and Mrs Partington have had the benefit of that money for the same period. On balance, I can see no reasons why Mr Urquhart should be denied the fruits of the learned Senior Member’s decision. The application for a stay should be refused.