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Queensland Judgments
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  • Unreported Judgment

Leonard v Hugh Reilly Real Estate

 

[2020] QCATA 24

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Leonard v Hugh Reilly Real Estate [2020] QCATA 24

PARTIES:

LEONIE LEONARD

(applicant/appellant)

 

v

 

HUGH REILLY REAL ESTATE

(respondent)

APPLICATION NO/S:

APL 016-20

ORIGINATING

APPLICATION NO/S:

MCDT271/19

MATTER TYPE:

Appeals

DELIVERED ON:

5 March 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Allen QC, Deputy President

ORDERS:

The applicant’s application to stay a decision is refused

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where  a stay of a decision is sought pending appeal – whether a stay can be granted when leave to appeal has not yet been granted – where the applicant would only suffer disadvantage if the stay was granted – whether an interim order in the nature of a stay should be made

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 58, s 142(3)(a)(i), s 145(2)

Hessey-Tenny & Anor v Jones [2018] QCATA 131

REPRESENTATION:

 

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

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

REASONS FOR DECISION

Introduction

  1. [1]
    These are the reasons for my decision, made on 27 February 2020, that the applicant’s application to stay a decision is refused.  

Background

  1. [2]
    The applicant filed an Application for minor civil dispute – residential tenancy dispute in the Magistrates Court at Mackay on 26 August 2019.  The applicant sought the sum of $13,350 from the respondent.  An amended Application filed on 5 November 2019 increased the sum claimed to $24,789.21. 
  2. [3]
    The application was heard and determined by a Magistrate sitting as QCAT and on 20 December 2019 the Magistrate ordered that the respondent pay to the applicant the amount of $1,222.50 (“the decision”).

The applications for leave to appeal or appeal and to stay the decision 

  1. [4]
    The applicant filed an Application to stay the decision on 13 January 2020. The applicant filed an Application for leave to appeal or appeal the decision on 14 January 2020.  The stated grounds for the Application for leave to appeal or appeal and the Application to stay a decision are in identical terms.  The grounds of appeal and the contents of an affidavit of the applicant filed on 25 February 2020 in support of her application for a stay are all directed towards the merits of the decision and do not otherwise deal with those aspects relevant to the exercise of discretion to stay a decision pending appeal. 
  2. [5]
    The respondent has filed a response on 24 February 2020 addressing the applicant’s grounds of appeal and opposing the application to stay a decision.
  3. [6]
    Leave to appeal the decision is required: Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“the Act”), s 142(3)(a)(i).

Principles 

  1. [7]
    The Tribunal has power to make an order staying the operation of a decision being appealed against until that appeal is finally decided: s 145(2) of the Act. The circumstances in which a stay might be granted are not proscribed by the Act.  General principles applied by the courts on applications for a stay pending appeal provide guidance.  An applicant for a stay must demonstrate a reason to warrant the exercise of discretion to grant the stay. The applicant must show that the balance of convenience favours a stay. Considerations such as irremediable prejudice in the absence of a stay will be relevant.  Original decisions are not to be treated as merely provisional pending the determination of an appeal.
  2. [8]
    Where, as is the case here, leave to appeal is required but has not yet been granted, the power to stay the decision under s 145(2) of the Act is not available but s 58 of the Act will empower the Tribunal to make an interim order to the same effect where the applicant can demonstrate exceptional circumstances such as to warrant the making of an order in the nature of a stay: Hessey-Tenny & Anor v Jones [2018] QCATA 131.

Consideration

  1. [9]
    The applicant has attacked the merits of the decision she seeks to appeal, including the regularity of the hearing and its conduct by the Magistrate. The respondent disputes such matters. I do not yet have available to me a transcript of the hearing or the Magistrate’s reasons. I am not in a position to be able to make any assessment of the applicant’s prospects on appeal. I am prepared to assume, for the purposes of considering this application, that the appeal is reasonably arguable.
  2. [10]
    The applicant has not sought to address any of those matters otherwise relevant to an application for a stay, such as the competing factors relevant to a consideration of the balance of convenience. She has not pointed to any disadvantage, let alone irremediable prejudice, in the absence of a stay. Indeed, it is obvious that the applicant would be disadvantaged if the stay was granted. The applicant’s application for a stay is entirely misconceived.  All it would practically achieve, if successful, would be to stay the operation of the decision and the liability of the respondent to pay a sum of money to the applicant pending the determination of the appeal. That could only disadvantage the applicant. 
  3. [11]
    None of the considerations that would favour a stay have been demonstrated in this case. The balance of convenience does not favour a stay of the decision. The applicant has not demonstrated exceptional circumstances such as to warrant the making of an order in the nature of a stay.
  4. [12]
    For these reasons, my decision was that the applicant’s application to stay the decision was refused.
Close

Editorial Notes

  • Published Case Name:

    Leonard v Hugh Reilly Real Estate

  • Shortened Case Name:

    Leonard v Hugh Reilly Real Estate

  • MNC:

    [2020] QCATA 24

  • Court:

    QCATA

  • Judge(s):

    Allen QC

  • Date:

    05 Mar 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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