Yates v Williams
[2012] QCATA 6
•17 January 2012
| CITATION: | Yates and Anor v Williams [2012] QCATA 6 |
| PARTIES: | Noela Leona Yates Jeffrey John Yates (Applicants/Appellants) |
| v | |
| Philip Williams (Respondent) |
| APPLICATION NUMBER: | APL434-11 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver, Senior Member |
| DELIVERED ON: | 17 January 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The application for stay is refused. |
| CATCHWORDS: | Stay – whether arguable case established – whether circumstance warrant departure from the usual rule that a successful litigant is entitled to the fruits of the decision Queensland Civil and Administrative Tribunal Act2009, s 145 Acts Interpretation Act 1954, s 14B Commissioner of Taxation (Cth) v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220 JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255 Deputy Commissioner Stewart v Kennedy [2011] QCATA 254 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act2009 (QCAT Act).
REASONS FOR DECISION
The Yates’ are owners of an apartment in the Magic Mountains Apartments complex at Palm Beach. The community title scheme is described as ‘Magic Mountain Apartments two CPS 15853’. On 7 July 2003 a Judge of the District Court made an order that the contribution schedule of lot entitlements ‘be adjusted’ in accordance with recommendations made in a report by Burns Australia Title Consulting Pty Ltd.
Mr Williams is also an owner of an apartment in that complex. In May 2011 he submitted a motion to the Committee of the Body Corporate entitled ‘Revision of Contributions Schedule’. After receiving submissions the Committee decided to reject the applicant’s motion.
The application was then referred to Mr Miskinis for adjudication pursuant to s 248 of the Body Corporate and Community Management Act 1997.
On 17 November 2011 Mr Miskinis made an order that the Body Corporate must deal with the applicant’s adjustment order reversal motion under s 385 of the BCCMA. He also ordered that the Committee should take the steps necessary to give effect to this order ‘as quickly as possible’.
From that adjudication, the Yates’ have filed an application for leave to appeal and appeal. They have also filed an application to stay Mr Miskinis’ decision until the appeal has been heard and determined. The application for the stay is to be determined on the papers.
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 Act2009, 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 judgment.[1] While it has been suggested that an applicant for a stay must establish ‘special 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 (Cth) 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 2) [1983] 2 Qd R 255 at 258.
[3]Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-5.
In Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347 at 4, Jerrard JA observed that the applicant should demonstrate that he or she has a good, arguable case on appeal; that he or she will be disadvantaged if a stay is not ordered; the competing disadvantage to the respondent, should the stay the be granted, does not outweigh the disadvantage suffered by the applicant if the stay is not granted; and that they should show that its success on appeal would not be rendered nugatory if the order appealed from not be stayed in the interim.
More recently, in dealing with an application for stay under s 22 of the QCAT Act the Tribunal reinforced the view that an applicant for a stay must address the issue of whether there is an arguable case.[4]
[4] Deputy Commissioner Stewart v Kennedy [2011] QCATA 254.
The critical facts in this appeal are whether the circumstances of the District Court making the adjustment order establish that it falls within the exception contained in s 378(b) of the BCCM Act, that is the definition of an ‘adjustment order’:
“Does not include an order of a Court or Tribunal giving effect to a decision that was not made by the Court or the Tribunal or other Court or Tribunal (including the decision that is not, but is taken or has been, made by the Court or Tribunal).”
[10] The section also provides an example of the type of order to be included in sub paragraph (b) and that is:
“An order of a Court or Tribunal give an affected to the terms of settlement of a dispute between the owner or a lot included in an existing scheme and the Body Corporate, if the terms provide for an adjustment of the contribution schedule for the scheme.”
[11] The relevant words of that example are “the terms of settlement of a dispute”.
[12] The Tribunal is entitled to have regard to the example[5]. The information before Mr Miskinis, which was not controversial, that there was no evidence that the order of the District Court gave effect to any terms of settlement between the parties. There was no resolution passed by the Body Corporate to support the application to the Court or the order sought. The Body Corporate did not appear on the application.
[5]Acts Interpretation Act 1954, s 14B and Raby v Body Corporate for 1 Holman Street CTS 31236 [2011] QCATA 449.
[13] On the evidence put before the Court in support of the application it was left to the Court, it seems to me, to exercise a discretion in making the order although it must be recognised that the lack of objection from the Body Corporate would have been a highly relevant factor in the exercise of discretion. The order was not made by consent not did the Body Corporate indicate that it consented to the order.
[14] The arguments raised in the submissions annexed to the application for leave to appeal do purport to establish there is an arguable case but this has to be considered against the evidence before the adjudicator at the time the decision was made. The submissions in support of the stay assert that the appeal involves a technical legal point and principles of statutory interpretation. They do not descend to particulars of how the section should be interpreted in the circumstances or how the adjudicator fell into error. The mere assertion is not sufficient to establish there is an arguable case.
[15] I am not persuaded from the submissions both in the application for leave or those supporting the application for the stay that the strength of the applicants’ case warrants a departure from the usual rule.
[16] As to the balance of convenience, even if I were persuaded there was an arguable case should the applicants succeed on the appeal that decision would not be rendered nugatory if the order appealed from was not be stayed in the interim. The Body Corporate would simply have to reverse to the contributions schedule if made before the Appeal is determined. In the face of an order from the Tribunal this process ought to be a formality. I am also not satisfied that the circumstances are so special to warrant a stay.
[17] The application for the stay is refused.
2
3
0