Steve Bagnall Homes Pty Ltd v Foley - [2019] QCATA 45

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Steve Bagnall Homes Pty Ltd v Foley & Anor [2019] QCATA 45

PARTIES:

STEVE BAGNALL HOMES PTY LTD
(applicant/appellant)

v

IAN FOLEY and BERNADETTE FOLEY

(respondents)

APPLICATION NO/S:

APL342-18

ORIGINATING APPLICATION NO/S:

BDL090-15

MATTER TYPE:

Appeals

DELIVERED ON:

10 April 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

Member King-Scott

ORDERS:

The Application for miscellaneous matters filed 19 February 2019 is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – WHEN REFUSED – where applicant ordered to pay respondents damages in proceedings for a building dispute – where applicant seeks to appeal the decision – whether applicant has an arguable case – where applicant argues adverse impact on QBCC licence - where applicant argues it may not be able to recoup payment if successful – whether the circumstances warrant the granting a stay of execution pending the outcome of the appeal.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 58, s 142, s 145

Day v Humphrey [2017] QCA 104 (26 May 2017)

Drew v Makita (Australia) P/L [2008] QCA 312 (9 October 2018)
Hessey-Tenny & Anor v Jones [2018] QCATA 131 (20 September 2018)
Stone Family Trust t/as Stone Consulting v Alison Rogers [2019] QCATA 7 (17 January 2019)

REPRESENTATION:

Applicant:

Construct Law Group

Respondent:

Active Law

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

Steve Bagnall Homes Pty Ltd (SBH) built a home for Mr and Mrs Foley. The parties fell into dispute. Mr and Mrs Foley subsequently commenced proceedings in the tribunal for a building dispute. On 31 October 2018 the Tribunal ordered SBH to pay to Mr and Mrs Foley $167,232.89.[1] SBH has appealed the decision.
[1]Foley v Steve Bagnall Homes Pty Ltd [2018] QCAT 458 (31 October 2018). Referred to as ‘the decision sum’ in the applicant’s submissions, a nomenclature we adopt in these reasons.
SBH has applied to stay the decision below.[2] The stay application now falls for determination.
[2]Application for miscellaneous matters filed 19 February 2019.
Stay applications
The start of an appeal to the Appeal Tribunal against a decision does not affect the operation of the decision or prevent the taking of action to implement the decision.[3] However, the Appeal Tribunal may make an order staying the operation of the decision being appealed against until the appeal is finally decided.[4]
[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 145(1).
[4]Ibid, s 145(2).
The relevant principles for consideration in an application to stay a decision were set out by the Appeal Tribunal in Stone Family Trust t/as Stone Consulting v Alison Rogers[5]
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] QCATA 45
Decision Date: 10 April 2019

CaseChat Overview and Summary

Steve Bagnall Homes Pty Ltd (the appellant) has appealed against a decision of the District Court of Queensland, wherein the appellant was ordered to pay the respondents, Foley, damages in a dispute relating to a building contract. The respondents brought the claim against the appellant for breach of contract and failure to complete the building works as per the terms agreed upon. The District Court found in favour of the respondents and ordered the appellant to pay damages. The appellant has sought to appeal this decision and has applied for a stay of execution of the judgment pending the outcome of the appeal.

The key legal issue before the court was whether the appellant had an arguable case for the appeal and whether the circumstances warranted a stay of execution. The appellant argued that the decision would have an adverse impact on its Queensland Building and Construction Commission (QBCC) licence, and that it may not be able to recoup the payment if successful in the appeal. The respondents, on the other hand, argued that the appellant had not demonstrated an arguable case for appeal and that the circumstances did not warrant a stay of execution.

The court considered the arguments put forward by both parties. The court found that the appellant had not demonstrated that it had an arguable case for appeal, as the appellant had not identified any significant errors of law or fact that warranted the appeal. Additionally, the court found that the circumstances did not warrant a stay of execution, as the appellant had not demonstrated that the enforcement of the judgment would result in substantial hardship or injustice. The court held that the appellant's potential loss of its QBCC licence and its inability to recoup the payment did not amount to substantial hardship or injustice.

The court refused the application for a stay of execution and dismissed the appeal. The court found that the appellant had not demonstrated that it had an arguable case for appeal and that the circumstances did not warrant a stay of execution. The court held that the appellant's potential loss of its QBCC licence and its inability to recoup the payment did not amount to substantial hardship or injustice. The court emphasised that the granting of a stay of execution was an exceptional remedy and that the appellant had not satisfied the required threshold. The court held that the appeal was without merit and dismissed it.

Orders

Orders of the court

The Application for miscellaneous matters filed 19 February 2019 is refused.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Steve Bagnall Homes Pty Ltd v Foley & Anor [2019] QCATA 45
PARTIES:	STEVE BAGNALL HOMES PTY LTD (applicant/appellant)
v
IAN FOLEY and BERNADETTE FOLEY (respondents)
APPLICATION NO/S:	APL342-18
ORIGINATING APPLICATION NO/S:	BDL090-15
MATTER TYPE:	Appeals
DELIVERED ON:	10 April 2019
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Senior Member Brown Member King-Scott
ORDERS:	The Application for miscellaneous matters filed 19 February 2019 is refused.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – WHEN REFUSED – where applicant ordered to pay respondents damages in proceedings for a building dispute – where applicant seeks to appeal the decision – whether applicant has an arguable case – where applicant argues adverse impact on QBCC licence - where applicant argues it may not be able to recoup payment if successful – whether the circumstances warrant the granting a stay of execution pending the outcome of the appeal. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 28, s 58, s 142, s 145 Day v Humphrey [2017] QCA 104 (26 May 2017) Drew v Makita (Australia) P/L [2008] QCA 312 (9 October 2018) Hessey-Tenny & Anor v Jones [2018] QCATA 131 (20 September 2018) Stone Family Trust t/as Stone Consulting v Alison Rogers [2019] QCATA 7 (17 January 2019)
REPRESENTATION:
Applicant:	Construct Law Group
Respondent:	Active Law
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).