Skinner v FTP Contracting Pty Ltd

[2019] QCATA 97

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Skinner v FTP Contracting Pty Ltd & Anor [2019] QCATA 97

PARTIES:

MATTHEW SKINNER
(appellant)

v

FTP CONTRACTING PTY LTD
and
MATTHEW COATES

(respondents)

APPLICATION NO/S:

APL119-19

ORIGINATING APPLICATION NO/S:

MCDQ5010/19 (Southport)

MATTER TYPE:

Appeals

DELIVERED ON:

Date of orders 18 June 2019

Reasons delivered 3 July 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Browne

ORDERS:

The application to stay a decision filed 15 May 2019 is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where application for a stay of an order made in the minor civil disputes jurisdiction – whether stay should be granted – where the original decision awarded money to the respondent – whether balance of convenience favours the granting of a stay – whether the appeal will be rendered nugatory if stay granted – whether stay should be granted

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 145

Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Barker v Lavery (1885) 14 QB 769
Berry v Green [1999] QCA 213

JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 1) [1983] 2 Qd R 243

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

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

REASONS FOR DECISION

1. Matthew Skinner seeks to appeal a decision made by the Tribunal in the minor civil disputes jurisdiction concerning a minor debt claim. Relevantly, the Tribunal ordered on 24 April 2019 in MCDQ5010/19 that Mr Skinner pay to FTP Contracting Pty Ltd and Matthew Coates (the respondents) the sum of $4,877.23 within twenty one days.

2. Mr Skinner also seeks a stay of the decision in MCDQ5010/19. The Appeal Tribunal has the power to stay the operation of a decision being appealed until the appeal is finally decided.[1]

   [1]QCAT Act, s 145.

3. The stay application was determined by me on 18 June 2019 without an oral hearing on the basis of the written submissions and material filed by the parties.[2] Mr Skinner has requested reasons for my decision now set out below.

   [2]See Appeal Tribunal Directions dated 20 May 2019.

   Should the application to stay be granted?

4. It is settled law that the power to grant a stay involves the exercise of a discretion. A party seeking a stay must demonstrate a basis for a stay. The balance of convenience and the competing rights of the parties must be considered in all of the circumstances.[3]

   [3]Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685, 694-5.

5. The fundamental principle governing applications for a stay is that the successful party is entitled to the fruits of its judgment.[4] Other relevant factors include whether success on appeal would be rendered nugatory were a stay not granted, that must be balanced against the expectation of the successful party to the fruits of the judgment.[5]  The onus rests on the applicant to persuade me that such ‘special circumstances’ do exist.[6]  A stay may be granted in respect of a money order if it can be established that if the appeal succeeds, the respondent would not be able to repay the money.[7] In JC Scott Constructions v Mermaid Waters Pty Ltd (No 1)[8] the Court in citing Barker v Lavery[9] held:

   It is also established that an onus rests upon an applicant for a stay to persuade the Court that such special circumstances do exist. In Barker v Lavery the Earl of Selbourne L.C. at 770 said:

   “The defendant is not entitled to have the application granted as a matter of course. Evidence ought to have been adduced to show that the plaintiff would be unable to repay the costs if he should be unsuccessful before the House of Lords. As to the request for time to make an affidavit about the plaintiff’s means, we cannot accede to it; those who apply for a stay of execution, must come before is prepared with all necessary materials”.[10]

   [4]Berry v Green [1999] QCA 213, [2].

   [5]JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 1) [1983] 2 Qd R 243, 247.

   [6]Ibid.

   [7]See JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 1) [1983] 2 Qd R 243, 247 and Barker v Lavery (1885) 14 QB 769, 770.

   [8][1983] 2 Qd R 243, 247.

   [9](1885) 14 QBD 769.

   [10]See JC Scott Constructions, 247 and Barker v Lavery (1885) 14 QB 769, 770.

6. In this matter, Mr Skinner says that he has reasonable grounds for appealing the decision; and the sum of the decision is a large sum of money for him to pay out before the appeal has been heard and determined.

7. Mr Skinner submits that he does not consider it unreasonable for the respondents to wait until the appeal has been determined for the reason that the invoice sent to him by FTP Contracting Pty Ltd was issued approximately twelve months after Mr Coates visited his property and carried out any work. Further, Mr Skinner says that he would have difficulty recovering the funds in the event that he is successful in his appeal.

   
   

   Mr Skinner relies upon documents identified as ‘company searches’ that he says support his submission that previous companies that Mr Coates has been involved in whether as a director or manager together with his wife, has gone into administration.

8. I am not persuaded that a stay should be granted in this matter. Whether or not

   
   

   Mr Skinner has reasonable grounds for appealing the decision is one of a number of matters to be considered in exercising my broad discretion. The respondents are entitled to the fruits of their judgment. I am not satisfied, based on the ‘company searches’ documents alone, that the respondents will not be in a position to repay the money if the appeal is successful. Indeed the respondents will be jointly and severally liable for any money ordered by the Appeal Tribunal, if the appeal is allowed, to be paid by the respondents to Mr Skinner.

9. Here the balance of convenience does not favour the granting of a stay. The application to stay a decision filed 15 May 2019 is refused. I order accordingly.