Savage Resorts Pty Ltd v Maksymiuk

CITATION:

Savage Resorts Pty Ltd v Maksymiuk [2015] QCATA 86

PARTIES:	Savage Resorts Pty Ltd (Applicant/Appellant)
v
Richard Maksymiuk (Respondent)

APPLICATION NUMBER:

APL498 -14

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Justice Thomas, President

DELIVERED ON:

12 June 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for an injunction is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – MINOR CIVIL DISPUTE – where notice to leave – where authority to issue notice to leave disputed – where adjournment to allow further evidence of authority – where tribunal did not accept further evidence established authority – where related proceedings in Court of Appeal – where stay granted pending decision of Court of Appeal – where application for injunction – whether balance of convenience favours grant of injunction

Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 32

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 (Qld) (QCAT Act).

REASONS FOR DECISION

On 19 March 2015, I dismissed Mr Richard Maksymiuk’s application to strike out Savage Resorts Pty Ltd’s application for leave to appeal or appeal. At that time, I stayed the further hearing of the application by Savage Resorts pending a decision from the Court of Appeal in a related matter between Savage Resorts and Mr Maksymiuk.
In this proceeding, there was an outstanding application by Mr Maksymiuk for an injunction. I directed the parties to file and serve submissions. These are the reasons for my decision on that application.
Mr Maksymiuk says that the decision in this proceeding depends upon the decision in the Court of Appeal proceeding. He says that the Court of Appeal decision will provide answers to several “Renting Act” (Residential Tenancies and Rooming Accommodation Act 2008) questions and, therefore, this proceeding must not continue until the Court of Appeal proceeding is fully determined.
Savage Resorts submits that Mr Maksymiuk has not discharged the onus of establishing why an injunction should be granted. It states that Mr Maksymiuk has not shown a good arguable case on appeal. It submits that the appeal to the Court of Appeal was lodged simply to delay the inevitable. It says that Mr Maksymiuk has not established prejudice.
Mr Maksymiuk, in reply, submits that Savage Resorts has not established an arguable appeal in this proceeding. He submits that Savage Resorts has consistently failed to comply with the tribunal’s directions, that Savage Resorts has provided false information to the tribunal and has filed fresh evidence without leave. Mr Maksymiuk again urges this tribunal to dismiss Savage Resorts’ application for leave to appeal.
These parties have been to the tribunal numerous times. There needs to be an end to litigation but resolving this application for leave to appeal, before the Court of Appeal’s decision, will not achieve that result.
I agree that Mr Maksymiuk has, so far, not provided a convincing argument for leave to appeal but I do not agree that Mr Maksymiuk has not established prejudice. All of these applications relate to Mr Maksymiuk’s right to reside at Il Centro, the apartment building managed by Savage Resorts. If the tribunal terminates Mr Maksymiuk’s tenancy, and the Court of Appeal decides the tribunal is wrong, Mr Maksymiuk will have suffered prejudice.
The only prejudice Savage Resorts will suffer in the interim is, perhaps, a financial disadvantage, although none of Savage Resorts’ material refers to a specific financial disadvantage. The disadvantage that Savage Resorts might suffer is no different from the disadvantage it presently suffers because of the stay I ordered on 19 March 2015.
For present purposes, that stay has the same effect as an injunction. Mr Maksymiuk’s application does not urge any additional reason for an injunction, nor does he seek to prevent any additional actions by Savage Resorts.
The application for injunction is dismissed.

CaseChat Overview and Summary

Savage Resorts Pty Ltd initiated proceedings against Maksymiuk, in the context of a minor civil dispute, to challenge the authority of Maksymiuk to issue a notice to leave. The dispute came before the court to determine the legality of the notice and the authority of the party that issued it. The tribunal, which had initially been tasked with resolving the dispute, granted a stay pending the outcome of related proceedings in the Court of Appeal. During the proceedings, Maksymiuk applied for an adjournment to present additional evidence regarding their authority to issue the notice, which the tribunal ultimately did not accept as establishing sufficient authority. The court was required to decide whether the balance of convenience favoured granting an injunction to Savage Resorts, pending the final determination of the appeal.

The court examined the nature of the evidence presented and the procedural history of the case. It noted the tribunal's decision to stay proceedings pending the outcome of the appeal and considered the relevance and weight of the additional evidence sought by Maksymiuk. The court concluded that the tribunal had appropriately exercised its discretion in declining to accept the further evidence, as it did not alter the fundamental issue of authority. The court further assessed the balance of convenience in relation to the injunction application, taking into account the potential impact on both parties and the broader legal principles at play. Ultimately, the court decided that the balance of convenience did not favour granting an injunction, and therefore, dismissed the application for an injunction.

The court's reasoning was grounded in a careful analysis of the procedural fairness and the merits of the evidence presented. It emphasised the tribunal's role in determining the admissibility of new evidence and upheld the tribunal's decision to maintain the stay. The court's decision reflected a cautious approach to the injunction application, weighing the potential prejudice to both parties and the need to avoid piecemeal litigation. The court's final order was clear: the application for an injunction was refused, leaving the underlying dispute to be resolved through the ongoing appeal process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established