Solar Energy Australia Group Pty Ltd v Bannink

[2013] QCATA 14

CITATION: Solar Energy Australia Group Pty Ltd  v Bannink [2013] QCATA 14

PARTIES:	Solar Energy Australia Group Pty Ltd
v
Willem Johan Bannink

APPLICATION NUMBER: APL414-12

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Peta Stilgoe, Senior Member

DELIVERED ON: 21 January 2013

DELIVERED AT: Brisbane

ORDERS MADE:      1.    The application to stay a decision is refused.

CATCHWORDS:

STAY APPLICATION – where appeal against decision of magistrate – whether grounds for stay

Croney v Nand[1999] 2 Qd R 342
Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd[2008] 2 Qd R 453
Chief Executive Officer, Department for Child Protection v S(2007) 98 ALD 329

Kostopoulos vG E Commercial Finance Australia Pty Ltd[2005] QCA 311

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009.

REASONS FOR DECISION

1. Mr Bannink undertook some consultancy work for Solar Energy Australia Group Pty Ltd.  There was a dispute about how and when Mr Bannink would be paid for that work.  Mr Bannink brought an application in the minor civil disputes jurisdiction of the tribunal.  A magistrate, sitting as a member of the tribunal, found in favour of Mr Bannink and ordered that the company pay him $8,000.

2. Solar Energy has appealed that decision.  It has also applied for a stay of the learned Magistrate’s order.

1. The question of whether a stay of the original decision should be granted is usually addressed according to established principles: is it an appropriate case to grant a stay?[1]  Does the applicant have an arguable case on appeal?[2]  Would a refusal of a stay render the appeal nugatory?[3]  Does the balance of convenience favour granting the stay?[4]  In addition, the fundamental principle governing applications for a stay is that the successful party is prima facie entitled to the benefit of the decision in its favour.

   [1]        Croney v Nand[1999] 2 Qd R 342 at 348.

   [2]Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd[2008] 2 Qd R 453 at 455.

   [3]Chief Executive Officer, Department for Child Protection v S(2007) 98 ALD 329 at 331.

   [4]        Kostopoulos v G E Commercial Finance Australia Pty Ltd[2005] QCA 311.

1. Solar Energy submits that is does have an arguable case of error in the primary decision.  I agree that its submissions do raise issues for the consideration of the Appeal Tribunal.

2. Solar Energy makes no comment as to whether a refusal of a stay would render the appeal nugatory.  There is no suggestion on any of the material that Mr Bannink would not be able to repay the $8,000 awarded to him in the event of a successful appeal.  Solar Energy has not satisfied me that there is a prospect that the appeal will be of no utility.

3. Solar Energy submits that the balance of convenience favours a stay.  It says its recent incorporation, the nature of its business, Mr Bannink’s conduct, and his receipt of funds from the company favour a stay.

4. Solar Energy was incorporated in 2010.  I fail to see how that can be a “recent” incorporation or how that affects the balance of convenience.  It says that it is the sole marketing and distribution agent of specialised products.  The company does not say why this favours a stay and I can think of no reason why its business should be a factor in my decision.  Mr Bannink’s conduct, and his receipt of money, was the subject of the learned Magistrate’s reasons for decision.  It may be a factor in the determination of the appeal, but it is not a factor in my determination of the stay application.

5. Solar Energy submits that the directions made in December 2012 disclose that there will be little or no delay until the application is heard.  Sadly, the Appeal Tribunal has many applications waiting for a decision and limited resources to enable those decisions to be made with “little delay”.  In fact, it could be some months before this appeal is determined.

1. Solar Energy has not persuaded me that the fundamental principle – that Mr Bannink is entitled to the benefit of the decision – should be overturned.  The application for a stay should be refused.