Pivavarova v Michelsen

[2018] QCATA 1

CITATION: Pivavarova v Michelsen [2018] QCATA 1

PARTIES:	Tatiana Pivavarova (Applicant/Appellant)
v
Peter B Michelsen t/as Peter Michelsen Buildng Service ABN 84003506297 (Respondent)

APPLICATION NUMBER: APL223 -17

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Justice Daubney, President and Member King-Scott

DELIVERED ON: 8 January 2018

DELIVERED AT: Brisbane

ORDERS MADE:

The application to stay the decision of 10 July 2017 is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – OTHER MATTERS – where the applicant appealed a decision of the Tribunal – where a decision on the appeal was favourable to the applicant and the matter was remitted to be determined according to law – where the Tribunal reheard the matter and found against the applicant – where the applicant appealed the reheard decision – where the applicant also applies for a stay – whether the possibility that the applicant will not be refunded if successful on her appeal outweighs the entitlement of the respondent to the fruits of the reheard decision – whether a stay ought be granted

Cook’s Construction Pty Ltd v Stork Food Systems Aust Pty Ltd (2008) 2 Qd R 453
La Macchia v Department of Housing and Public Works [2015] QCATA 143
Pivovarova v Michelsen [2015] QCATA 73

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

AMENDED REASONS FOR DECISION

1. This is an application by Tatiana Pivovarova for a stay of the decision of the Tribunal made on 10 July 2017.

2. Before considering the stay application it is necessary to summarize the long history of the matter.

3. Ms Pivovarova, the home owner, contracted with a licensed builder, Peter Michelsen, to build a new home at Brookwater. She was not happy with the outcome. and brought proceedings in the Tribunal against Mr Michelsen. Ultimately Mr Michelsen brought an application in the Tribunal claiming moneys owed by Ms Pivovarova. The matter was not decided in her favour by the Tribunal, and she appealed the decision.

4. A decision on the appeal was delivered on 10 June 2015 and a number of Ms Pivovarova’s grounds of appeal were upheld. The Appeal Tribunal set aside the decision and remitted the matter to the Tribunal to be determined according to law.

5. The same Member of the Tribunal determined the matter on the papers and delivered her decision on 10 July 2017. Again, she found against Ms Pivovarova.

6. Ms Pivovarova has appealed that decision.

7. The application before this Appeal Tribunal is to stay that latest decision, which was that Ms Pivovarova pay the sum of $40,990 together with interest from 12 July 2012 at a rate of 15% to Mr Michelsen by no later than 1 August 2017.

8. Carmody J in La Macchia v Department of Housing and Public Works[1] set out the relevant principles to be considered when deciding a stay application under s.145 (2) of the QCAT Act. His Honour…