Wechsel v Andrew (No 2)
[2011] QCATA 61
•17 March 2011
| CITATION: | Wechsel v Andrew (No 2) [2011] QCATA 61 |
| PARTIES: | Hayley Wechsel (Applicant/Appellant) |
| v | |
| Michael Andrew (Respondent) |
| APPLICATION NUMBER: | APL373-10 |
| MATTER TYPE: | Application to stay a decision pending appeal |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Justice Alan Wilson, President |
| DELIVERED ON: | 17 March 2011 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | The applicant’s application for an interim order or injunction is refused. |
| CATCHWORDS : | APPEAL – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCY – INTERIM ORDER OR INJUNCTION – where a Magistrate ordered that the applicant pay the respondent $10,400 by way of rent reduction – where an application for leave to appeal has been lodged – where an interim order or injunction is sought on the grounds that: the respondent may not be able to repay the money if the appeal is allowed, recovery action against the respondent might be difficult as he resides outside Queensland, the property is being ‘marketed’, and an offer for purchase of the property might be compromised – whether an interim order or injunction should be granted Queensland Civil and Administrative Tribunal Act 2009 Cook’s Construction Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QCA 322, cited |
APPEARANCES and REPRESENTATION (if any):
By order of the Appeal Tribunal this matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
On 30 November 2010 a Magistrate at Townsville, sitting as a QCAT Member in the Minor Civil Disputes jurisdiction, adjudicated in a residential tenancy dispute between Ms Wechsel and Mr Andrew and ordered that she pay him $10,400 by way of rent reduction over a stated period, because of the condition of the property during that period.
Ms Wechsel has sought leave to appeal that decision. Leave is necessary: QCAT Act, s 142(3)(a)(i).
Ms Wechsel also sought an order staying the operation of the decision of the learned Magistrate, pending determination of her application for leave to appeal. The Appeal Tribunal has power to make an order to that effect: s 145(2). The only grounds advanced by Ms Wechsel in support of her application for a stay were that she had ‘lodged an appeal’ and was also awaiting the ‘decision in writing from the Tribunal’. The Deputy President considered the matter and on 25 January 2011 refused to order a stay. Ms Wechsel, through solicitors, then required that the Deputy President give reasons for her decision. She did so, and her reasons were published on 9 March 2011.
Then on about 17 March 2011, solicitors acting for Ms Wechsel filed an application for an interim order or injunction. Although that is a different application from one under s 145(2), and on its face is brought under ss 58 and 59 of the QCAT Act, it is clear from the contents of the form itself and some accompanying submissions, apparently prepared by the solicitors, that what was again sought was a stay of the operation of the decision in the Minor Civil Disputes case.
On 17 March I issued an order that the application for an interim order or injunction should be refused. Now, by letter of that date, Ms Wechsel’s solicitors require, again, that reasons be given for that decision.
In her reasons for refusing the original application for a stay order, the Deputy President (then Acting President) correctly, with respect, observed that the only ground advanced at that time in support of the application – the possibility that submissions in support of the application for leave to appeal might be supplemented after the transcript of the learned Magistrate’s reasons was obtained – provided no proper basis for a stay.
In an apparent effort to overcome that deficiency Ms Wechsel’s legal advisors have now provided submissions to the effect, in short, that if she pays the judgment awarded against her to the respondent before determination of the appeal, the respondent may not be in a position to repay it in the event the appeal is wholly, or partially, successful; and, that because the respondent now lives outside Queensland, any later recovery action against him to retrieve the judgment sum might be difficult.
It is also said that the applicant is currently ‘marketing the property’ to which the original proceedings related and if the respondent took enforcement action and registered an ‘enforcement warrant’ over the property, that would inhibit her ability to pay.
It is said, further, that the applicant has received an offer on the property and the sale ‘… may be compromised by any enforcement action taken’. Otherwise, it is said, the applicant is attempting to borrow funds to enable her to pay the judgment sum.
[10] The circumstances in which a stay of execution of a judgment pending the outcome of an appeal to a higher body may be allowed were recently considered by Keane JA (as he then was) in the Court of Appeal decision in Cook’s Construction Pty Ltd v Stork Food Systems Australia Pty Ltd [2008] QCA 322. As his Honour observed:
…[I]t will not be appropriate to grant a stay unless a sufficient basis is shown to out-weigh the considerations that judgments of the Trial Division should not be treated as merely provisional, and that a successful party in litigation is entitled to the fruits of its judgment.[1]
[1] Cook’s Construction Pty Ltd v Stork Food Systems Australia Pty Ltd (supra) at [12].
[11] His Honour then went on to consider some of the factors which, he said, might lead to a stay being ordered, including the applicant’s prospect of success; the question whether the appeal would be rendered pointless if a stay was not ordered; and, whether some serious harm would be done to the applicant.
[12] Although she is represented by lawyers Ms Wechsel’s submissions do not address the first question. The transcript of the learned Magistrate’s decision does not, on its face, carry any indication or suggestion of obvious error and there is not, presently, any persuasive basis for thinking that Ms Wechsel is able to show that she does have good prospects of success in her appeal. It is also to be borne in mind that she does not, yet, have leave to appeal and must overcome that hurdle first.
[13] Nor do her lawyer’s submissions suggest a real risk of harm. Neither are they persuasive that, if she obtained leave to appeal and her appeal was successful, her judgment in the appeal would be fruitless. Lawyers acting for her opponent in the proceedings have demanded payment of the judgment debt, and threatened enforcement action, including the registration of an enforcement warrant, over the property she owns. They are entitled to take those steps. They do not, of themselves, warrant a stay. It is said an enforcement warrant, if registered, might inhibit a sale but that does not logically follow.
[14] The further suggestion that, because Mr Andrew may have moved interstate, Ms Wechsel may not later be able to recover the judgment sum is unpersuasive. Mechanisms exist for the enforcement of judgments within the Commonwealth of Australia.
[15] In the absence of any persuasive submission that Ms Wechsel:
[a]had good prospects of obtaining leave to appeal;
[b]if she obtains leave, has good prospects of succeeding in her appeal; and
[c]faces the risk that, if these things fall in her favour, she would not be able to recover the judgment sum she may have paid;
there was no sound basis to grant an interim order or injunction – or, for that matter, a stay.
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