Wechsel v Andrew

CITATION:

Wechsel v Andrew [2011] QCATA 49

APPELLANT:	Hayley Wechsel (Applicant/Appellant)
v
RESPONDENT:	Michael Andrew (Respondent)

APPLICATION NUMBER:

APL373-10

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Fleur Kingham, A/President

DELIVERED ON:

9 March 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

The applicant’s application to stay the decision dated made on 30 November 2010 in MCD392-10 is refused.

CATCHWORDS :

APPLICATION FOR LEAVE TO APPEAL – APPLICATION TO STAY DECISION ON APPEAL – where applicant sought to stay original decision pending appeal – where written reasons requested but not received – where oral reasons given

REASONS FOR DECISION

This is an application by Mrs Wechsel to stay a decision of the Tribunal made on 30 November 2010. That decision related to a residential tenancy dispute and required Mrs Wechsel to pay Mr Andrew $10,400 by way of rent reduction over a stated term due to the condition of the property during that period. On 25 January 2011 I declined Mrs Wechsel’s application to stay that decision. Mrs Wechsel has now requested reasons for the decision. These are my reasons.

The application to stay the decision relies on a request to the Tribunal, as yet unsatisfied, for written reasons for the original decision. Oral reasons were given when the decision was announced. The application for leave to appeal identifies what Mrs Wechsel says were the errors made by the Magistrate who heard the matter. Written reasons will provide further information for Mrs Wechsel or those advising her in preparing her application.

Lodging an application for leave to appeal does not have the effect of staying the decision[1]. The Tribunal may make an order staying the operation of the decision until the appeal is finally decided[2]. The Tribunal’s discretion to grant a stay is unfettered. Unless there is some particular feature of a case which warrants it, a successful party is prima facie entitled to the fruits of its judgement[3].
[1]        Queensland Civil and Administrative Tribunal Act 2009, s 145(1).
[2]        Queensland Civil and Administrative Tribunal Act 2009, s 145(2).
[3]        Berry v Green [1999] QCA 213 per de Jersey CJ at [3].

The fact that the information put forward in support of the application for leave to appeal might be supplemented after consideration of the written reasons, is not sufficient basis for exercising discretion in the applicant’s favour. Accordingly, the application to stay the decision is refused.

CaseChat Overview and Summary

The matter involved Wechsel as the applicant and Andrew as the respondent. The dispute centred on the applicant’s request for leave to appeal a decision made by the court. Additionally, the applicant sought to stay the original decision pending the outcome of the appeal. A key point of contention was that while the applicant had requested written reasons for the decision, these were not provided. Instead, oral reasons were given.

The primary legal issues before the court were whether the applicant was entitled to written reasons for the decision and whether the applicant was entitled to a stay of the original decision pending the appeal. The court needed to determine if the lack of written reasons constituted a ground for granting leave to appeal and if the circumstances warranted a stay of the original decision. The court also needed to consider the general principles governing the grant of a stay pending appeal.

The court held that the absence of written reasons did not, in itself, constitute a ground for granting leave to appeal. The court noted that oral reasons had been provided and were sufficient for the purposes of the appeal. Regarding the stay, the court found that the applicant had not demonstrated a compelling reason why the original decision should be stayed pending the appeal. The court emphasised that a stay is not granted as a matter of course and requires a strong showing of potential prejudice if the decision is not stayed. Given the circumstances, the court concluded that the applicant had not met the necessary threshold for a stay. Consequently, the application for leave to appeal and the application for a stay of the decision were both refused.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established