Star Coffee Company Pty Ltd v Lend Lease Funds Management Limited - [2022] QCATA 183

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Star Coffee Company Pty Ltd v Lend Lease Funds Management Limited & Anor [2022] QCATA 183

PARTIES:

star coffee company pty ltd

(applicant/appellant)

v

lend lease funds management limited
Lewis land group pty ltd

(respondent)

APPLICATION NO/S:

APL245-22

ORIGINATING APPLICATION NO/S:

RSL010-21

MATTER TYPE:

Appeals

DELIVERED ON:

14 November 2022

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Acting Deputy President Brown

ORDERS:

1.     The application to stay a decision is refused.

2.     Direction 7, 8, 9, 10 and 11 of the Appeal Tribunal directions dated 14 September 2022 are confirmed.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where balance of convenience does not favour grant of stay – where application to stay refused

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 145(1), s 145(2).

Cook's Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] QCA 322.

Day v Humphrey [2017] QCA 104.
Hessey-Tenny & Anor v Jones [2018] QCATA 131.
Stone Family Trust t/as Stone Consulting v Alison Rogers [2019] QCATA 7.

APPEARANCES & REPRESENTATION:

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

Applicant:

Hannay Lawyers

Respondent:

Minter Ellison

REASONS FOR DECISION

On 14 November 2022 I refused an application to stay the operation of the decision under appeal. My reasons follow.
Star Coffee leases from Lend Lease Funds and Lewis Land Group premises used as a retail shop.
On 25 February 2022 the Tribunal decided a retail tenancy dispute between the parties. Star Coffee has appealed the decision.
The operation of a decision by the tribunal or the taking of action to implement the decision is unaffected by the filing of an appeal against the decision.[1] The Appeal Tribunal may make an order staying the operation of the decision being appealed against until the appeal is finally decided.[2]
[1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 145(1).
[2]Ibid, s 145(2).
In Stone Family Trust t/as Stone Consulting v Alison Rogers[3] the relevant principles to be applied in determining an application to stay a decision were set out by the Appeal Tribunal:
A party seeking the stay order must satisfy the Tribunal that the discretion to grant a stay ought to be exercised in the circumstances of the matter. There must be sound reasons for suspending the rights that a successful party otherwise has to the fruits of the judgment obtained in its favour. The balance of convenience in the circumstances must be considered. If 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. In respect of a money order, a stay may be granted in circumstances where there is evidence that if the appeal succeeds, the respondent would not be able to repay the money.
[3][2019] QCATA 7 (17 January 2019) [5] (citations omitted).
Star Coffee must establish that:
(a)It has a good arguable case in the appeal;
(b)It will be disadvantaged if a stay is not granted;
(c)There is some compelling disadvantage to the respondent if a stay is granted which outweighs the disadvantage suffered by Star Coffee if a stay is not granted.[4]
[4]Day v Humphrey [2017] QCA 104 (26 May 2017).
Where an applicant’s case is at least arguable the focus of consideration necessarily shifts to questions of competing advantage and disadvantage if the stay be granted or not.[5]
[5]Hessey-Tenny & Anor v Jones [2018] QCATA 131 (20 September 2018), Daubney J, President.
I proceed on the basis that Star Coffee has an arguable case.
Star Coffee say a number of things about the consequences of not granting the stay including:
(a)An unfair and unjust penalty in the requirement to have the applicant pay the monies the subject of the decision below arises, in circumstances where the amounts are impermissible calculated and overstated;
(b)This might (and probably will) effectively mean that the business conducted by the applicant is at an end;
(c)The requirement for the applicant to pay the judgment sum will result in irreparable harm and prejudice to the business of the applicant and the goodwill and reputation of the applicant in the community and the ‘people behind’ the applicant who are well known in the Gold Coast community;
(d)The applicant has suffered a reduction in seating as a consequence of the effects of the COVID-19 pandemic and should not be further punished by having to meet the payments the subject of the decision;
(e)To refuse the stay would probably result in a statutory demand being served upon the applicant which would place the longevity of the company in jeopardy;
(f)The directors of the applicant are not earning monies from the business and it would be wrong and contrary to good conscience and community expectations to place the applicant in a position where it is required to meet the payment required by the final decision which may jeopardise the fundamental viability of the applicant;
(g)If the applicant is required to pay the monies it will have to ‘dismiss or make some of its staff redundant with dramatic financial effect for those employees and their families’;
(h)The applicant has spent substantial funds refurbishing and maintaining the leased premises.
The difficulty for Star Coffee is that, despite the detailed nature of the submissions relied upon in support of the stay application, it offers no cogent evidence for the arguments raised and, in particular:
(a)There is no evidence offered to support the assertion that payment of the monies will result in the ‘end’ of the business being conducted by Star Coffee;
(b)There is no evidence of, or indeed particulars of, the ‘irreparable harm and prejudice to the business of (the applicant), and the goodwill and reputation of (the applicant) in the community’;
(c)There is no evidence offered to support the assertion that a statutory demand is likely to be served upon Star Coffee or that the service of such a demand would place the longevity of the applicant in jeopardy. The fact that an applicant may face receivership or liquidation if a stay is not granted is not necessarily of itself determinative.[6] Here, as I have observed, there is no evidence offered by Star Coffee that this might be the result of refusing the stay;
(d)There is no evidence offered to support the submission that staff would be required to be made redundant including evidence of the number of staff employed, whether the staff are employed on a permanent or casual basis and/or on a full time or part time basis, how many staff may be required to be made redundant and the basis upon which the applicant says that such redundancies will flow from the refusal to grant the stay.
[6]Cook's Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] QCA 322.
Other matters raised by Star Coffee in its submissions are of little or no relevance in the stay application including the adverse effect upon the ‘goodwill’ of the persons behind Star Coffee and the monies it says have been expended in refurbishing and maintaining the premises.
Finally, Star Coffee does not assert that if the monies are paid there is a risk that Lend Lease Funds and Lewis Land Group will be unable to repay monies should Star Coffee ultimately be successful in the appeal.
I am unpersuaded that Star Coffee has offered any cogent evidence to support the many assertions it makes as to the detriment it will suffer if the stay is not granted. The balance of convenience does not favour the grant of the stay.
A decision of the Tribunal is not conditional. Lend Lease Funds and Lewis Land Group are entitled to the benefits flowing from the decision under appeal.
The application to stay the decision under appeal is refused.