Russell and Russell v Chelbrooke Homes Pty Ltd

[2011] QCATA 183

CITATION: Russell and Russell v Chelbrooke Homes Pty Ltd [2011] QCATA 183

PARTIES:	Michael Russell and Charmaine Russell (Applicant/Appellant)
v
Chelbrooke Homes Pty Ltd (Respondent)

APPLICATION NUMBER:   APL204-11

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Judge Fleur Kingham, Deputy President

DELIVERED ON: 8 July 2011

DELIVERED AT: Brisbane

ORDERS MADE:     1.        Application for a stay is refused

CATCHWORDS: 

APPEAL – BUILDING DISPUTE – STAY – whether stay would be granted

Queensland Civil and Administrative Tribunal Act 2009 s 145(2)

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

Berry v Green [1999] QCA 213

Cooks Construction Pty Ltd v Stork Foods Systems Australia Pty Ltd [2008] 2 Qd 453

J C Scott Constructions v Mermaid Waters Tavern Pty Ltd (2) [1983] 2 Qd 255

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).

REASONS FOR DECISION

1. Mr and Mrs Russell were unsuccessful in resisting a claim by Chelbrooke Homes under a building contact.  They have applied for leave to appeal that decision although, it appears, the application was marginally out of time and no extension of time has yet been sought.

2. The Russells seek a stay of the decision pending the outcome of the appeal because, they say, unless they can obtain a final certificate for the dwelling they cannot source funds to meet the amount they have been ordered to pay.

3. The application for a stay is resisted by the builder.

4. The discretion to grant a stay is unfettered.[1]  The governing principle is that a successful party is entitled to the fruits of a decision in their favour, unless there is a particular feature of the case which warrants departure from that position.[2]

   [1]        Queensland Civil and Administrative Tribunal Act 2009 s 145(2).

   [2]        Berry v Green [1999] QCA 213 at 2.

5. To succeed in an application for a stay, the Russells must show good reason for the stay to be granted and that this is an appropriate case in which to grant a stay.[3]  The Tribunal will not order a stay unless it is required to secure the effectiveness of the appeal because to refuse it would compromise the ability of the Appeal Tribunal to grant the relief sought and the balance of convenience favours the grant of the stay.[4]

   [3]J C Scott Constructions v Mermaid Waters Tavern Pty Ltd (2) [1983] 2 Qd 255 at 259; Asia Pacific International Pty Ltd v Peal Valley Mushrooms Ltd [1999] 2 Qd R 458.

   [4]Cooks Construction Pty Ltd v Stork Foods Systems Australia Pty Ltd [2008] 2 Qd 453 at [12], [13] and [15].

6. The builder submits that the owner’s inability to obtain a final certificate was not an issue raised in the proceedings at first instance.  The finding by the learned Member of the Tribunal was that the builder validly terminated the building contract in response to the owner repudiating it.  The effect of that declaration was that the builder was released from further performance under the contract. 

7. That declaration is not challenged in the application for leave to appeal.  Even if the owners are successful in obtaining leave and in appealing the learned Member’s decision, the appeal would not provide them with the relief they seem to be seeking in their submissions in support of a stay.  The builder would still be under no obligation to further perform the contract, although the appeal may well have some bearing on the damages the owners have been ordered to pay to the builder. 

8. Given those factors, this is not an appropriate case in which the Tribunal should exercise its discretion to grant a stay of the decision.  The application is refused.