Thake v Wise & Wise Realty - [2023] QCATA 23

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Thake v Wise & Wise Realty [2023] QCATA 23

PARTIES:

PATRICIA THAKE

(applicant/appellant)

v

WISE & WISE REALTY

(respondent)

APPLICATION NO/S:

APL343-22

ORIGINATING APPLICATION NO/S:

MCDQ343-22 (Southport)

MATTER TYPE:

Appeals

DELIVERED ON:

15 March 2023

DECISION DATE:

30 January 2023

HEARD AT:

Brisbane

DECISION OF:

Member Lember

ORDERS:

1. The application to stay a decision is refused.

2. The application for leave to appeal or appeal is listed for an oral hearing in Southport at a date and time to be fixed. Notice of the hearing will be sent to the parties in due course.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where stay is sought – where the subject matter is payment from the applicant to the respondent – whether a stay can be granted when leave to appeal has not yet been granted

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 11, s 13, s 58, s 143, s 145, Schedule 3

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Day v Humphrey [2017] QCA 104
Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347
Hessey-Tenny & Anor v Jones [2018] QCATA 131
Kissun v Modern Group (Qld) Pty Ltd [2021] QCAT 379
Saxer v Hume [2022] QCATA 25

Simonova v Department of Housing and Public Works [2018] QCA 60

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).

REASONS FOR DECISION

Summary

On 17 October 2022 the Tribunal sitting at Southport made an order that Ms Thake pay Ms Wise the sum of $3,180.70 within 28 days (the Decision).
Ms Thake wants to appeal the Decision[1] but to do so, leave is first required.[2]
[1]Application for leave to appeal or appeal filed 18 November 2022.
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 143(3).
On 30 January 2023 I refused an application by Ms Thake to stay the Decision pending the outcome of the application for leave to appeal and, if successful, appeal. Reasons for my decision to refuse the stay have been requested and now follow.

Primary dispute

The primary dispute between the parties arose from a contract pursuant to which Ms Wise/Wise and Wise Realty was appointed by Ms Thake to act as selling agent on the sale of Ms Thake’s property. It was a term of the Form 6 appointment that Ms Wise would fund upfront advertising fees of $3,050 on the condition that these costs would be reimbursed by Ms Thake to Ms Wise within seven days of the sale of the property or the termination of the appointment, whichever occurred first.
By an application for a minor civil dispute – minor debt filed 1 July 2022 Ms Wise claimed $3,050 from Ms Thake, plus costs and interest, being the…

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.

Continue reading Thake v Wise & Wise Realty

Details

AGLC: Thake v Wise & Wise Realty [2023] QCATA 23
Case: [2023] QCATA 23
Decision Date: 15 March 2023

CaseChat Overview and Summary

The applicant in this case, Mr. Thake, sought to appeal a decision made by the District Court of Queensland, which had ruled in favour of the respondent, Wise & Wise Realty. The primary issue at hand was the refusal of a stay of proceedings on a decision that pertained to a payment from Mr. Thake to Wise & Wise Realty. The crux of the legal question before the court was whether a stay of proceedings could be granted when leave to appeal had not yet been obtained. This issue was significant as it related to the procedural aspects of the appeal process and the appropriate conditions under which a stay should be considered.

The court examined the general principles governing the grant or refusal of a stay of proceedings, particularly in cases involving payments. It was noted that a stay is generally not granted when the primary issue is a monetary payment, as it would essentially allow the applicant to delay fulfilling their obligation to pay. The court further considered the implications of granting a stay without leave to appeal being granted first, as this could potentially disrupt the orderly process of judicial review and undermine the finality of court decisions. The court held that the principles of fairness and the integrity of the legal process necessitated a refusal of the stay application.

As a result, the court ruled that the application to stay the decision was to be refused. The court did, however, list the application for leave to appeal or the appeal itself for an oral hearing, which would be conducted in Southport. The parties were to be notified of the hearing date and time in due course. This decision underscores the court's commitment to maintaining the procedural integrity of the appeal process and ensuring that stays of proceedings are granted sparingly and only under appropriate circumstances.

Orders

Orders of the court

1. The application to stay a decision is refused.

2. The application for leave to appeal or appeal is listed for an oral hearing in Southport at a date and time to be fixed. Notice of the hearing will be sent to the parties in due course.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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