Stone Family Trust t/as Stone Consulting v Alison Rogers

[2019] QCATA 7

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Stone Family Trust t/as Stone Consulting v Alison Rogers

[2019] QCATA 7

PARTIES:

STONE FAMILY TRUST T/AS STONE CONSULTING

(applicant)

v

ALISON ROGERS T/AS VOCAL MANOEUVRES ACADEMY

(respondent)

APPLICATION NO/S:

APL258-18

ORIGINATING APPLICATION NO:

MCDO60/17 (Cleveland)

MATTER TYPE:

Appeals

DELIVERED ON:

Date of orders 8 November 2018

Reasons delivered 17 January 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Senior Member Howard

ORDERS:

1. The application to stay the Tribunal’s decision of

30 August 2018 in MCDO60/17 (Cleveland) 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 in the minor civil disputes jurisdiction is made – whether stay should be granted – where the original order awarded money to the respondent - where balance of convenience lies – whether appeal will be rendered nugatory if stay refused – whether stay application should be granted

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

Barker v Lavery (1885) 14 QB 769

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

McBride v Sandland (No 2) (1918) 25 CLR 369

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. The Stone Family Trust t/as Stone Consulting filed an application for a minor civil dispute (MCD) seeking orders for the payment of a sum of money from Alison Rogers t/as Vocal Manoeuvres Academy. An Adjudicator heard the MCD and gave a decision requiring that the Stone Family Trust pay to Alison Rogers the sum of $1,987.56.

2. Subsequently, the Stone Family Trust filed an application for leave to appeal the Adjudicator’s decision, as well as an application to stay the decision of the Tribunal, pending the determination of the appeal. The Stone Family Trust submits essentially that a stay order should be made because the Adjudicator’s calculation of amounts paid and owing was in error and because an appeal has been filed. Both parties had an opportunity to make submissions in relation to the application for a stay order.

3. The stay application was subsequently determined on the papers without an oral hearing on the basis of the parties’ submissions by me on 8 November 2018. The Stone Family Trust have requested a copy of my reasons for decision and I now provide them.

General principles in relation to stay applications

1. Under s 145 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), the Appeal Tribunal may make an order staying the operation of a decision being appealed until the appeal is decided. The issues to be considered in deciding whether to stay an order pending appeal are well settled.

2. 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.1 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.2 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

1. McBride v Sandland (No 2) (1918) 25 CLR 369, 374.

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

3. Barker v Lavery (1885) 14 QB 769.

Should a stay order be made?

1. Both parties’ submissions are to the effect that a mathematical error was made, although they each contend for a different error in their favour, not the other party’s. Largely, the Stone Family Trust’s submissions do not address the relevant factors in respect of the stay application.

2. The order the Stone Family Trust seeks to leave to appeal is a money judgment. There is no evidence to suggest that if the appeal succeeds, Alison Rogers will be unable to repay the money. The appeal would not be rendered nugatory without a stay order. The balance of convenience lies with Ms Rogers who was successful before the learned Adjudicator.

3. I refuse the application for a stay order.