Woodgate Beach Asian Pacific Realty Pty Ltd v Gerard

[2010] QCATA 64

CITATION: Woodgate Beach Asian Pacific Realty Pty Ltd v Gerard [2010] QCATA 64

PARTIES:	Woodgate Beach Asian Pacific Realty Pty Ltd   (Applicant/Appellant )
v
John Leslie GERARD  (Respondent)

APPLICATION NUMBER:            APL166-10   

MATTER TYPE: Appeal

HEARING DATE:   On the papers

HEARD AT:   Brisbane

DECISION OF: Justice Alan Wilson, President

DELIVERED ON:   31 August 2010

DELIVERED AT:   Brisbane

ORDERS MADE:  Application for leave to stay a Minor Civil Dispute decision refused         

CATCHWORDS :  PROCEDURE – MINOR CIVIL DISPUTE – RESIDENTIAL TENANCIES – APPLICATION TO STAY DECISION – where the adjudicator ordered the applicant/appellant to pay the respondent a fixed sum in compensation – where the applicant/appellant seeks leave to appeal the decision – where the applicant/appellant filed for a stay of the decision pending leave to appeal – whether stay should be granted

REASONS FOR DECISION

1. The applicant seeks leave to appeal a decision of an adjudicator in QCAT’s Minor Civil Disputes jurisdiction under which it was ordered that a company called Craig Courtney Investments Pty Ltd pay the respondent, Mr Gerard, the sum of $16,200.00 for ‘part compensation excluding bond’. As those words indicate, the matter arose out of a dispute about a residential tenancy.

2. The identity of the parties involved in ownership or management of the residential premises to which the proceedings related is murky. Mr Gerard brought proceedings in this Tribunal against Woodgate Beach Asian Pacific Realty Pty Ltd which, according to documents tendered before the adjudicator in the Tribunal, manages the premises on behalf of the owner. The application for leave to appeal the adjudicator’s decision filed in QCAT’s Appeal Tribunal shows a Mr Graham White as the applicant/appellant. He also brought an application to stay the Tribunal decision. That application has been supported by submissions filed under the hand of a lawyer apparently acting on instructions from Craig Courtney Investments Pty Ltd, said to be the owner of the residence.

3. On 23 August 2010 this Appeal Tribunal directed that the application for leave to appeal (and the appeal, if leave is granted) would be determined by written submissions to be exchanged between the parties, according to a timetable. On 24 August the Tribunal directed that the application for a stay would also be dealt with by written submissions, under a shorter timetable. Both parties filed submissions.

4. The submissions for the applicant/appellant in support of the stay are comprised principally of an affidavit sworn by the solicitor for Craig Courtney Investments Pty Ltd. He says he was informed by ‘the respondent’ (which appears to be a reference to Mr Graham White) that during the hearing before the adjudicator Mr Gerard stated that he would experience excessive hardship if he was not awarded judgement because his financial resources had been frozen by the police. The solicitor claims to have conducted a variety of investigations with the Brisbane Fraud Squad, the Crime and Misconduct Commission, the Commonwealth Department of Public Prosecutions, and searches of databases of the Federal and Queensland Courts, which suggest that no such thing has happened.

5. The solicitor has also filed submissions referring to these enquiries asserting, at least by implication, that Mr Gerard mislead the adjudicator and that the applicant here has a good arguable case on appeal and will suffer disadvantage if a stay is refused.

6. The respondent Mr Gerard has filed submissions denying he made any claims of the kind alleged, but conceding that he did make submissions referring to ‘ongoing medical grounds’ and a ‘lack of funds’. There is, however, amongst the papers in the adjudicator’s file a letter from Mr Gerard which appears to be addressed to Mr Graham White and says, among other things, ‘the police has (sic) stopped by bank account’.

7. The transcript of the proceedings before the learned adjudicator, and the reasons for his decision, have been sought but are not presently available.

8. This Tribunal has power to make an order staying the operation of a decision being appealed against, until that appeal is finally decided: Queensland Civil and Administrative Tribunal Act 2009, s 145(2). The normal rule is, of course, that a litigant is entitled to the ‘fruits’ of the litigation, a phrase which typically includes a judgement[1].  While it has been suggested that an applicant for a stay must establish ‘exceptional circumstances’[2] before an order will be made, it has also been said that the discretion is unfettered and that the applicant must demonstrate a basis for a stay, with particular emphasis upon such matters as the balance of convenience, and the competing rights of the parties[3].

   [1]        Commissioner of Taxation v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220 at 222-3 per Dawson J

   [2]        JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 1) [1983] 2 Qd R 255 at 258

   [3]        Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685, at 694-5

9. In the case, as here, of a money judgement, an inability to refund the judgement sum if the appeal is successful may be a material factor[4]. The court or tribunal will not, in an application for a stay arising in a proposed appeal, estimate the applicants chances of success, but it can assess whether the applicant has an arguable case.

   [4]        JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) (1983) 2 Qd R 255, at 259

10. In Asia Pacific International Pty Ltd v Peel Valley Mushrooms Ltd [1999] 2 Qd R 458 the Queensland Court of Appeal observed that an applicant who seeks a stay of an interlocutory judgement pending an appeal should show that there is a good arguable case on appeal, that the applicant will suffer a disadvantage if the stay is refused, and that the balance of advantage and disadvantage of granting the stay favours a stay.

11. Although the learned adjudicator’s decision is not an interlocutory one, this is a case in which similar factors fall for consideration. The application was heard by an experienced adjudicator and involved an apparently straight forward dispute about rent payable under an agreement pursuant to the Residential Tenancies and Rooming Accommodation Act 2008.

12. Although neither the transcript nor the reasons for the decision are yet available it is plain from the grounds of the proposed appeal, set out in the application for leave, that leave is sought in respect of a proposed appeal involving mixed questions of law and fact.   The question of law is said to be whether or not there was sufficient evidence to support a finding of excessive hardship, to Mr Gerards benefit. The question of fact is said to be evidence from Mr Gerard misleading the Tribunal that his funds have been ‘frozen’.

13. As the material filed in respect of the application for a stay shows, the nature of the evidence given by Mr Gerard is in dispute. The alleged error of law does not bear close examination – it seems, again, to be a simple allegation about Mr Gerard’s evidence. 

14. Under the QCAT Act an applicant for leave to appeal a decision in a proceeding for a Minor Civil Dispute must obtain the Appeal Tribunals leave. The question whether or not leave to appeal should be granted is usually addressed according to established principles: Is there a reasonably arguable case of error in the primary decision?[5] Is there a reasonable prospect that the applicant will obtain substantive relief?[6] Is leave necessary to correct a substantial injustice to the applicant caused by some error?[7] Is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage?[8]

    [5]        QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

    [6]        Cachia v Grech [2009] NSWCA 232 at [13].

    [7]        QUYD Pty Ltd v Marvass Pty Ltd (supra).

    [8]        Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, at 389; McIver Bulk   Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577 at 578, 580.

15. Nothing in the submissions for the applicant suggests any error of law. The only apparent dispute is about a question of fact – the grounds upon which Mr Gerard claimed hardship. Nothing in the applicant’s submissions suggests that Mr Gerard will not be able to refund the judgement sum if leave is granted, and an appeal is successful. On the material provided it is impossible to form a view about the applicant’s prospects on appeal; it is simply unclear whether the applicant has an arguable case. In those circumstances there is nothing in the applicant’s submissions which would attract the exercise and discretion to stay the learned adjudicator’s decision. For these reasons, the application was refused.