Smith v Chesterton as adminstratrix of the estate of Southion, deceased
[2011] QCATA 355
•18 October 2011
| CITATION: | Smith v Chesterton as adminstratrix of the estate of Southion, deceased [2011] QCATA 355 |
| PARTIES: | Baydon Smith (Appellant) |
| v | |
| Judith Chesterton as adminstratrix of the estate of Damonde Laurence Southion, deceased (Respondent) |
| APPLICATION NUMBER: | APL276-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Fleur Kingham, Deputy President |
| DELIVERED ON: | 18 October 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The Tribunal directs the Registrar to correct the file to record Mr Smith as the Applicant. 2. Upon Ms Chesterton undertaking not to transfer any money paid to the estate of Damonde Laurence Southion, pursuant to the judgement in BD448-08, or as interest, or as costs, out of Australia until further order, the agreement of the parties, or the resolution of Mr Smith’s appeal; Mr Smith’s application to stay the final decision in BD448-08 is refused. |
| CATCHWORDS: | APPEAL – APPLICATION FOR LEAVE TO APPEAL – STAY – whether stay should be granted – whether stay can be granted before leave to appeal has been given Queensland Civil and Administrative Tribunal Act 2009, ss 143(4), 145(2) Atia v Nusbaum (No 2) [2011] QCAT 182 cited Cook’s Constructions Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] QCA 322 applied |
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
In May 2011, the Tribunal determined a building dispute between the parties and ordered that the owners, Mr and Mrs Smith, pay Ms Chesterton, $117,632.58 plus interest. Ms Chesterton is the administratrix of the deceased builder, who was her spouse. This dispute occurred shortly after Mr Southion’s unfortunate death. It involved Mr Southion’s claim for a progress payment for the fixing stage of the construction and Mr and Mrs Smith’s purported termination of the building contract. The learned Member determined the termination was ineffective and Mr and Mrs Smith were liable to pay the amount claimed.
Mr Smith has sought leave to appeal the decision and, until the appeal is determined, to stay the decision. These reasons relate only to the stay application.
The Tribunal appeal file records Weatherford Financial Services, a business name under which Mr Smith trades, as the applicant. The original proceeding was brought against Mr and Mrs Smith personally, as the contracting parties. The business conducted under the business name Weatherford Financial Services has no connection with this dispute. It seems the file was created under the business name in error. It is evident that Mr Smith is the sole applicant and has not purported to commence proceedings on behalf of his wife as well. I direct the Registrar to correct the file to record Mr Smith as the applicant.
Ms Chesterton resisted the stay application on the merits. She also challenged the Tribunal’s power to stay the decision, unless and until the Tribunal grants Mr Smith leave to appeal.
The application to stay the decision fails on its merits
Mr Smith’s application to stay the decision fails on application of the orthodox principles. He has not demonstrated a sufficient basis to outweigh the consideration that a successful party should be entitled to the fruits of the decision in their favour.[1]
[1]Cook’s Constructions Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] QCA 322, [12].
Mr Smith raised a number of grounds of appeal, but relied, particularly, on the following to demonstrate the appeal raises serious questions about the decision:
a) Whether Mr and Mrs Smith’s termination of the building contract was unreasonable or vexatious and, therefore, ineffective;
b) Whether the doctrine of substantial performance relieved the builder of the obligation to undertake complete performance of the contractually mandated works in respect of the fixing stage before being entitled to claim payment for that stage; and
c) The procedural unfairness in the Member’s decision to refuse Mr Smith leave to call further evidence about the scope of works in his claim for the costs to complete the project.
The reasons the learned Member gave for her decision are detailed and comprehensive. She carefully explored the alternative grounds upon which Ms Chesterton advanced her claim. In the event that she erred in allowing the claim on any one those grounds, she explained why, nonetheless, she considered the amount was recoverable on other grounds.
Ms Chesterton strongly contests Mr Smith’s case on appeal. At first blush, the last of the three grounds relied on has little merit. Accepting that the other grounds are arguable, Mr Smith’s prospects of succeeding are not so strong that this provides sufficient basis for granting a stay. Further, because there are alternative grounds upon which the learned Member made the award at first instance, depending on the findings on appeal, success on any particular ground might not result in the decision being set aside.
Mr Smith argued he would suffer irremediable prejudice if the Appeal Tribunal does not stay the decision. He gave an affidavit in which he asserted he lacks the means to meet the order and enforcement would result in his bankruptcy. He argued that this justified a stay.[2]
[2] Atia v Nusbaum (No 2) [2011] QCAT 182.
Ms Chesterton rightly pointed to the lack of evidence to prove Mr Smith’s statements about his personal finances and the income generated by his business. A company, Weatherford Financial Services Pty Ltd (as trustee for the Weatherford Trust), conducts the business. Mr Smith did not exhibit any personal or corporate tax returns, or evidence of the valuation of personal or corporate assets or loans. Nor did he exhibit the company’s current balance sheet or any evidence of its trading history.
To justify a stay, the applicant must provide sufficiently extensive or specific evidence as to the impact payment of the judgment would have.[3] Mr Smith has failed to do that.
[3] Willemse Family Trust v Deputy Commissioner of Taxation [2003] Qd R 334, [28].
Nor has he demonstrated that, if he ultimately succeeds on appeal, he could not recover the sum paid to Ms Chesterton in compliance with the decision. To allay any concern that she might take steps to defeat an appeal decision in his favour, Ms Chesterton is willing to undertake not to transfer out of Australia the sum paid to the estate.
Mr Smith argued Ms Chesterton would not suffer prejudice if her recovery was delayed until the appeal concluded. He pointed to the fact these proceedings have been on foot since November 2008. The time between filing and decision is hardly a factor that weighs in favour of a stay. Ms Chesterton, acting as executrix of Mr Southion’s estate, is seeking to recover a sum that she says has been outstanding since December 2007. Given the circumstances in which the dispute occurred, there could be no suggestion that she has unreasonably delayed asserting rights on behalf of Mr Southion’s estate.
Even accepting that Mr Smith has raised some arguable points on appeal, the balance of convenience counts against granting the stay.
The Appeal Tribunal can stay a decision before leave to appeal has been granted if an appeal has been filed
Given the conclusion reached on the merits of the application, it is not strictly necessary to address Ms Chesterton’s submission about the Appeal Tribunal’s power to grant a stay before an applicant has secured leave to appeal. Because this argument raises important questions about the scope of the Appeal Tribunal’s power it should be addressed in these reasons.
Ms Chesterton’s argument is based on a line of Queensland cases regarding the relevant provision of the Uniform Civil Procedure Rules (UCPR 761). That rule provides the court may order a stay of the enforcement of all or part of a decision “subject to an appeal”. The Court of Appeal has determined that there cannot be a decision subject to an appeal unless there is an appeal; until leave is granted, there is no appeal.[4]
[4]Stone v Copperform Ptd Ltd [2007] QCA 7; Clarke v Pelenyi [2002] QCA 81; Koteska v Dillon & Ors [2010] QCA 138.
Section 145(2) provides the Tribunal may make an order staying the operation of the decision being appealed against until the appeal is finally decided. Ms Chesterton conceded that wording is not identical to UCPR 761, but argued it was to the same effect. I do not agree with that proposition.
The question for the Appeal Tribunal is whether there is any material difference in the precise wording of the two provisions: does the phrase a decision being appealed bear the same meaning as a decision subject to an appeal. In my view, there is a material difference and the cases interpreting UCPR 761 are therefore distinguishable.
The phrase subject to in UCPR 761 means dependent or conditional upon something,[5] in the case of that rule, an appeal. The phrase is adjectival, describing, by limiting, the noun, decision. It describes the state or condition of the decision. Either it is subject to an appeal or it is not.
[5] The Macquarie Dictionary 3rd ed subject 20.
The verb-phrase being appealed in s 145(2) combines the present participle being with the verb appealed in a progressive sense, to convey a process rather than a state. This is not just a matter of semantics. A decision is in the process of appeal (rather than being subject to appeal) once the appeal is filed.
There is no impediment to a party filing an appeal in QCAT at the same time as they file an application for leave to appeal. Indeed, the one form is approved for both purposes. Although it is possible to apply for leave to appeal, without appealing, the Act does not require a party to first obtain leave. If leave is required, the appeal period is calculated by reference to the date leave is granted. This sets the last date on which a party must file an appeal. It does not set a date before which a party cannot file an appeal.[6]
[6]Queensland Civil and Administrative Tribunal Act 2009, s 143(4).
If a party may file an appeal before the Tribunal has granted leave to appeal, the decision is being appealed, in the sense of going through the process of appeal, once the appeal is filed.
Although it is not necessary to determine the point in this case, it seems to me that the interpretation described above is consistent with the ordinary meaning of the words used in s 145(2).
0
4
0