Yates v Williams

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
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685

Deputy Commissioner Stewart v Kennedy [2011] QCATA 254
Raby v Body Corporate for 1 Holman Street  CTS 31236 [2011] QCATA 449

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

1. 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.

1. 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. 

1. The application was then referred to Mr Miskinis for adjudication pursuant to s 248 of the Body Corporate and Community Management Act 1997. 

1. 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’. 

1. 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.

1. 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…