Pollock v Lewis Constructions Pty Ltd
[2012] QCATA 184
•18 September 2012
| CITATION: | Pollock and Anor v Lewis Constructions Pty Ltd [2012] QCATA 184 |
| PARTIES: | Andrew Pollock Belinda Pollock (Appellants) |
| v | |
| Lewis Constructions Pty Ltd (Respondent) |
| APPLICATION NUMBER: | APL215-12 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 18 September 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Application for stay pending appeal refused. |
| CATCHWORDS: | CONTRACTS – BUILDING, ENGINEERING AND RELATED CONTRACTS – REMUNERATION – AMOUNT – stay application – where builder sought recovery of outstanding sum – where tribunal found for builder – where application for leave to appeal or appeal filed – whether grounds warranting stay of decision Queensland Civil and Administrative Tribunal Act 2009, ss 4, 22, 145(2) Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] QCA 322 Sweeney v Magnay [2011] QCATA 104 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
Lewis Constructions Pty Ltd performed building work for Mr and Mrs Pollock in 2007 and 2008. Subsequently, the company began proceedings against them in 2009, which were ultimately heard by a QCAT Member over eight days between October 2010 and November 2011.
On 13 June 2012 the learned Member delivered her decision, with 28 pages of reasons. She ordered that Mr and Mrs Pollock pay Lewis Constructions Pty Ltd the sum of $195,095.14 within 21 days[1].
[1] And that the parties file and exchange submissions in relation to costs.
Mr and Mrs Pollock have filed and application for leave to appeal, or simply to appeal, the decision. They have also filed an application to stay the operation of the Member’s decision under s 145(2) of the QCAT Act. The appeal tribunal directed that the stay application be heard and determined on the papers, and the parties have filed and exchanged submissions.
Oddly the submissions for Mr and Mrs Pollock purport to rely on s 22 of the QCAT Act which relates, rather, to the tribunal’s review jurisdiction in administrative law matters. In line, nevertheless, with the tribunal’s concern to ensure that proceedings are conducted in an informal way that minimises cost to parties and is as quick as is consistent with achieving justice[2], it is appropriate to treat the application as one brought under s 145(2).
[2] Queensland Civil and Administrative Tribunal Act 2009, s 4(c).
The submissions from Mr and Mrs Pollock are, otherwise, terse. They are directed to two propositions: that the learned Member’s decision was plainly wrong, and that payment of the judgment sum to the builder carries the risk that, when the appeal succeeds, the Pollocks would have difficulty recovering it. It is said that their prospects of appeal are “high” because there are “obvious errors on the face of the judgment”. It is also said that Lewis Constructions Pty Ltd is a company with only two ordinary fully paid shares and that it owns no real property.
Submissions addressed to the correct legislative provision, and the proper tests to be applied in an application for a stay, have been received from Lewis Constructions Pty Ltd.
The approach to be taken by this appeal tribunal in a stay application is similar to that adopted in the Courts. The applicant must show a sufficient basis to outweigh the fact the judgments in the Court should not be treated as merely provisional, and that a successful party in litigation is entitled to fruits of its judgment.[3]
[3]Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] QCA 322; Sweeney v Magnay [2011] QCATA 104.
The primary focus will be, as Keane JA (as his Honour then was) said in Cooks Construction,[4] whether or not the appeal might be rendered nugatory by a refusal of the stay and whether the applicant will be irremediably prejudiced if the stay is not granted and the appeal is ultimately upheld.
[4]Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] QCA 322.
Keane JA also suggested, in that case, that the factors to be considered will usually include a preliminarily assessment of the appellant’s case (if that is possible).
The Pollocks’ application for leave to appeal, or appeal, set out a number of grounds, the majority of which challenge the learned Member’s findings on matters in which she preferred the evidence of an expert called by Lewis Constructions Pty Ltd to that of another who gave evidence on behalf of Mr and Mrs Pollock. Other grounds challenge her findings of fact about appropriate methods of rectification work and its cost.
The learned Member took care in her lengthy reasons, with respect, to explain her findings when she made choices between the evidence of the two experts and, also, findings in which she preferred the evidence of witnesses called by Lewis Constructions Pty Ltd to that given on behalf of the Pollocks.
It is not at all apparent from the learned Member’s reasons that any of her findings were, obviously, against the evidence or the weight of evidence, and support for Mr and Mrs Pollock’s assertion that their prospects of success in the appeal are high is not readily apparent. While attempts to estimate prospects of success will always, at this stage of the matter, lack precision, there is nothing in the applicant’s grounds of appeal or in the learned Member’s reasons which compels the conclusion that their prospects of success are high, or strong. Rather, a careful reading of the reasons suggests they could not be categorised as more than, at best, moderate.
There is no evidence that Mr and Mrs Pollock’s appeal, if successful, would be rendered nugatory if a stay is not granted. There is no evidence from which an adverse inference can be drawn as to the ability, or otherwise, of the company to pay money it may have to disgorge if the appeal is successful. It is apparent that the company is licensed by the QBSA and would therefore be required to comply with QBSA financial requirements. There is also evidence that it has an unblemished disciplinary record.
Nor is any evidence advanced by Mr and Mrs Pollock to establish that there is, otherwise, a real prospect of irremediable harm to them if a stay is refused, but their appeal is ultimately successful. Their submissions are couched in very general terms and are comprised principally of assertions, rather than any concrete attempt to establish that harm is even a probability.
In summary, Mr and Mrs Pollock have simply failed to establish any ground warranting a stay, and their application for one must be refused.
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