PHOENIX TIMBER PRODUCTS TRADING AS VINTAGE HARDWOODS and SKINNER
[2005] WASAT 315
•6 DECEMBER 2005
PHOENIX TIMBER PRODUCTS TRADING AS VINTAGE HARDWOODS and SKINNER [2005] WASAT 315
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2005] WASAT 315 | |
| BUILDERS' REGISTRATION ACT 1939 (WA) | |||
| Case No: | CC:3535/2005 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR C RAYMOND (SENIOR MEMBER) | 6/12/05 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | PHOENIX TIMBER PRODUCTS TRADING AS VINTAGE HARDWOODS (ACN 103392623) BETTY SKINNER |
Catchwords: | Builders' Registration Act 1939 Application to stay decision of Building Disputes Tribunal pending application for leave to review Applicable principles |
Legislation: | Builders' Registration Act 1939 (WA), s 39 State Administrative Tribunal Act 2004 (WA), s 25 |
Case References: | GFS Management Services Pty Ltd v Ground and Foundation Supports Pty Ltd & Ors [2001] WASC 280 Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119 Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : BUILDERS' REGISTRATION ACT 1939 (WA) CITATION : PHOENIX TIMBER PRODUCTS TRADING AS VINTAGE HARDWOODS and SKINNER [2005] WASAT 315 MEMBER : MR C RAYMOND (SENIOR MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 6 DECEMBER 2005 FILE NO/S : CC 3535 of 2005 BETWEEN : PHOENIX TIMBER PRODUCTS TRADING AS VINTAGE HARDWOODS (ACN 103392623)
- Applicant
AND
BETTY SKINNER
Respondent
Catchwords:
Builders' Registration Act 1939 - Application to stay decision of Building Disputes Tribunal pending application for leave to review - Applicable principles
Legislation:
Builders' Registration Act 1939 (WA), s 39
State Administrative Tribunal Act 2004 (WA), s 25
(Page 2)
Result:
Application dismissed
Category: B
Representation:
Counsel:
Applicant : Self-represented
Respondent : Self-represented
Solicitors:
Applicant : Self-represented
Respondent : Self-represented
Case(s) referred to in decision(s):
GFS Management Services Pty Ltd v Ground and Foundation Supports Pty Ltd & Ors [2001] WASC 280
Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119
Case(s) also cited:
Nil
(Page 3)
Summary of Tribunal's decision
1 The applicant applied for a stay of an order of the Building Disputes Tribunal pending an application for leave to review the Disputes Tribunal's decision.
2 The grounds for review were based upon the Disputes Tribunal allegedly disregarding the Builders' Registration Board Inspector's report and the existence of some remedial work affecting the assessment of the cause of cupping or rippling of the timber floor in question.
3 As the reasons for decision showed that the Inspector's report had been taken into account and contained no reference to any contention about the effect of the alleged remedial work and there was as yet no transcript of evidence to support the applicant, the Tribunal concluded that it had not been demonstrated, at this stage, that the grounds for review had any merit. Further, the Tribunal was not satisfied that there was a proper basis for a stay which would be fair to all parties particularly as there was nothing to suggest that the review would be nugatory if the applicant complied with the Dispute Tribunal's order because the applicant could not be restored substantially to its former position if the decision was subsequently reversed.
The application
4 The applicant has applied for an order for leave to review the decision of the Building Disputes Tribunal reflected in an order to pay No 58/2005-2006 dated 14 October 2005.
5 At the same time as making the above application the applicant filed an interim application seeking a stay of the order to pay.
6 In support of the application the applicant filed a letter dated 14 November 2005 together with attachments. The letter focuses primarily on establishing the merits of the proposed review but includes a statement that "the respondent has not paid us for work performed in March 2004 for $1918. We therefore believe that should the order to pay not be stayed we would experience similar recovery issues should the SAT rule in our favour".
7 The applicant contends that the decision of the Disputes Tribunal is wrong because the Disputes Tribunal "completely disregarded inspection reports and other remedial work had been undertaken".
(Page 4)
8 The inspector's report referred to is one prepared by an inspector of the Builders' Registration Board dated 1 March 2005. The report referred to possible causes of moisture levels existing in the wooden flooring which was the subject of the dispute.
9 In addition, at a directions hearing on 17 November 2005, Mr Day of the applicant, informed the Tribunal that the Disputes Tribunal had been misled because the respondent had carried out remedial work prior to an inspection conducted by the Disputes Tribunal. As a result the Disputes Tribunal discounted the causes referred to by the inspector and supported by the applicant. Mr Day advised that had he realised that the respondent would dispute that remedial work had been carried out, he would have taken steps to ensure that the state of the floor, prior to such remedial work, was recorded. He stated that he had cross-examined the respondent's expert witness on the remedial works but the witness contended that at the time when he was engaged, he had not observed any indication of repairs.
The grounds for a stay
10 The starting point is that a successful party should be entitled to the fruits of his or her judgment so that there is an onus on the applicant to demonstrate a proper basis for a stay.
11 In GFS Management Services Pty Ltd v Ground and Foundation Supports Pty Ltd& Ors [2001] WASC 280, the court referred to Seaman, "Civil Procedure Western Australia",Butterworths, 1990, at par 63.15.1 where the principles are set out in the following terms:
"The discretion to stay execution pending an appeal is unfettered and the applicant for a stay carries the onus of showing that the circumstances are appropriate for a stay to be granted. Before weighing other factors the court needs to be satisfied that there is an arguable case for an appeal to ensure that the appeal has not been lodged simply to delay execution: see Croney v Nand [1999] 2 Qd R 342 at 348, 349 CA. The onus is upon the applicant to demonstrate a proper basis for a stay which will be fair to all parties and the court will weigh the balance of convenience and the rights of the parties: Alexander v CambridgeCredit Corporation Ltd (1985) 2 NSWLR 685, 69. Appropriate circumstances may exist if it is shown that if a stay of execution is not granted, the appeal may be nugatory: Wilson v Church (No 2) (1879) 12 ChD 454 at 458, or that serious injury will result to the applicant unless a stay is granted:
(Page 5)
- McBride v Sandland (No 2) (1918) 25 CLR 369 at 375. An appeal will be nugatory when, because of the respondent's financial state, there is no reasonable prospect of recovering money paid to him or her pursuant to the judgment, but appropriate circumstances are not limited to that situation and will exist whenever there is a real risk that it will not be possible for a successful appellant to be restored substantially to his or her former position: Federal Commissioner of Taxation v Myer Emporium Ltd (No 1) (1986) 160 CLR 220 at 223 …"
12 The court referred further to Seaman at par 63.15.1A where it is said:
"Inconvenience and the possibility of some risk to the appellant's property do not constitute special circumstances (Cox v Simeon FCt SCt of WA, Library No 5063, 7 September 1983, unreported. Neither does the mere preservation of the status quo, nor by themselves do the merits of the appeal. Furthermore it not sufficient to constitute special circumstances that the appeal is arguable, is being pursued in good faith and with expedition and that the stay will not prejudice anybody: Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79 at 80, 88 (FC)."
13 Those principles should also apply to an application for a stay of a reviewable decision under s 25 of the State Administrative Tribunal Act 2004 (WA) subject to the requirements of s 25(4) which prescribe that the Tribunal may make an order staying the operation of a decision that is the subject of a proceeding for a review only if it considers that it is desirable to do so after taking into account –
"(a) the interests of any persons whose interests may be affected by the order;
(b) any submission made by or on behalf of the decision-maker; and
(c) the public interest."
14 The dispute in this matter is between the parties to the proceedings and is personal to them. There is no particular public interest factor which is evident. The decision-maker has not made any submissions. In the circumstances, it is the interests of the parties which will govern the grant of an order staying the decision in question, subject to the general principles referred to above.
(Page 6)
Considerations
15 It is apparent that the applicant will have an onerous task in succeeding on the merits of the application for leave. It is necessary that the applicant demonstrate that the decision is obviously wrong or attended with sufficient doubt and that a substantial injustice would result if the decision were left unreversed as in Tangent Nominees Pty Ltd and Edwards & Anor[2005] WASAT 119.
16 The reasons for decision show that the Disputes Tribunal had regard to the inspector's report but preferred the expert evidence of the witness called on behalf of the applicant. The reasons for decision are silent as to any contention that the Disputes Tribunal was misled because the effect of earlier remedial work was to obscure the true contributing factors to the rippling or cupping of the flooring. Without a transcript of the evidence and in the face of the reasons for decision above, I do not consider that the applicant has demonstrated at this stage that the application for review has merit.
17 In addition, there are, in my view, no circumstances put forward which would constitute a proper basis for a stay which would be fair to all parties.
18 There is nothing to suggest that the respondent's non-payment of the sum of $1918 was due to any financial difficulty. To the contrary, the parties were in dispute over the manner in which the applicant had performed the contract and the amount was ultimately taken into account by the Disputes Tribunal and set off against the full remedial costs claimed by the respondent.
19 There is nothing to suggest that the review would be nugatory because the applicant would not be able to recover payment from the respondent, if the decision were to be ultimately reversed.
Order
20 In the circumstances the application for a stay of the decision must be dismissed and it is ordered:
1. The application for a stay of the decision of the Building Disputes Tribunal reflected in the Order to Pay No 58/2005 is dismissed.
(Page 7)
I certify that this and the preceding [20] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR MEMBER
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