You're Secure v George

[2014] QCATA 258

CITATION: You’re Secure v George [2014] QCATA 258

PARTIES:	You’re Secure (Appellant)
v
Angelia Louisa George (Respondent)

APPLICATION NUMBER: APL350-14

MATTER TYPE: Appeals

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Acting Senior Member Paratz

DELIVERED ON: 3 September 2014

DELIVERED AT: Brisbane

ORDERS MADE: 1.    The application to stay the decision is refused.

CATCHWORDS:

APPLICATION TO STAY DECISION UNDER APPEAL - MINOR CIVIL DISPUTE – whether grounds for stay established – where a claim by consumer for refund for security screens and flyscreens – where no justification for a stay was shown

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 145(2)

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
Jennings v Design and Procure Pty Ltd [2010] QCATA 36

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Ms George contracted with You’re Secure for the supply of security screen windows, doors and flyscreens at her rental property at Redbank Plains in Queensland.

2. She brought an application in the Tribunal on 4 June 2014 for refund of the money paid by her of $1,044.00 plus filing fees of $101.40.

3. You’re Secure have removed the security screens and fly screens from the property.

4. The Tribunal, composed of two Justices of the Peace, made an Order on 23 July 2014 that You’re Secure pay to Ms George the sum of $1,000.00 within 28 days.

5. You’re Secure filed an Application for leave to appeal or appeal on 19 August 2014 in respect of the decision.

6. You’re Secure also filed an Application to stay the decision on 19 August 2014. Directions were made as to filing of submissions, and for an On the Papers determination of the application not before 1 September 2014. Submissions were received, and this is the decision on the stay application.

7. 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 (Qld) (QCAT Act), s 145(2).

8. The normal rule is 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.

1. You’re Secure has advised as to submissions on the stay application that:

In reference to paragraph 2, we would advise no further material shall be filed as this Application to stay the decision is based on the Appeal of that decision with the grounds and reasons as stated in our form 39 lodged on the same day and time as this Application

1. The “Grounds of Appeal” in part C of You’re Secure’s application for leave to appeal do not canvass any hardship caused to it by the Order, or raise any specific justification for a stay. The grounds contest the legal basis of the decision and canvass issues as to repudiation of contract.

1. Ms George has submitted that she wishes the claim to be paid as the property is a two storey house with low windows and she believes it to be a safety concern and needs to be resolved urgently. She says that she has paid the invoice for the fly screens.

1. A stay will not be granted unless the applicant has an arguable case on appeal and the balance of convenience favours the grant of a stay.[4]

   [4]Jennings v Design and Procure Pty Ltd [2010] QCATA 36 at para 4.

1. It is not necessary to assess the strength of the case of You’re Secure, as no need for, or justification for, a stay has been shown by it.

1. The balance of convenience is therefore clearly with Ms George who is entitled to the fruits of the decision in her favour, and who has suffered detriment by paying for the fly screens which have since been removed from the property.

1. The application by You’re Secure for a stay is refused.