Naspur Corporation Pty Ltd v Angie Developments Pty Ltd No 3
[2023] QCAT 155
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- Unreported Judgment
- Naspur Corporation Pty Ltd v Angie Developments Pty Ltd No 3[2023] QCAT 155
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Naspur Corporation Pty Ltd v Angie Developments Pty Ltd No 3[2023] QCAT 155
Naspur Corporation Pty Ltd v Angie Developments Pty Ltd No 3[2023] QCAT 155
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Naspur Corporation Pty Ltd v Angie Developments Pty Ltd No 3 [2023] QCAT 155 |
PARTIES: | naspur corporation pty ltd atf john crossley family trust (applicant) v angie developments pty ltd atf angie unit trust (respondent) |
APPLICATION NO/S: | RSL014-22 |
MATTER TYPE: | Retail shop leases matter |
DELIVERED ON: | 2 May 2023 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member King-Scott |
ORDERS: | Application dismissed. |
CATCHWORDS: | APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where consent agreement – where stay is sought to preserve the subject matter of the appeal – where the subject matter is payment from the applicant to the respondent – whether a stay can be granted when application for leave to appeal has not been filed. Queensland Civil Administrative Tribunal Act 2009 (Qld) Cooks Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] 2 Qd R 453 Day v Humphrey [2017] QCA 104 Fylas Pty Ltd v Vynal Pty Ltd (1992) 2 Qd R 593 Hessey-Tenny & Anor v Jones [2018] QCATA 131 Siebe Gorman Co Ltd v Pneupac Ltd [1982] 1 WLR 185 |
APPEARANCES & REPRESENTATION: | 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
- [1]Naspur Corporation Pty Ltd (Naspur) operates a childcare centre, trading in the Raintrees Shopping Centre at Manunda, Queensland.
- [2]The Shop is leased by Naspur. Angie Developments Pty Ltd (Angie Developments) is the lessor.
- [3]A dispute arose as to who is responsible for the replacement of damaged air-conditioning units and repair and replacement of a damaged floor and fence.
- [4]On 21 February 2023 a Compulsory Conference was conducted by Member Lember. An agreement was reached subject to Angie Development’s Solicitor forwarding a document for signature. On 24 February the Solicitor sent to Naspur’s Solicitor an email to the effect that his client was not prepared to enter into a deed of settlement in which his client would have to pay money.
- [5]Member Lember reconvened the conference on 27 February 2023. The Member reminded the parties that they had reached an agreement that was to be formalised in a written document. With the assistance of the parties, Member Lember drafted the orders, the form and terms of which were agreed by parties. Angie Developments solicitor maintained his objection that no settlement had been reached. Member Lember has provided reasons for her decision.
- [6]Angie Developments has applied for a stay pending an appeal from Member Lember’s orders.
- [7]Section 145 of the QCAT Act, which empowers the Tribunal to stay execution of a decision pending appeal does not provide a basis for a stay here, as no appeal has been commenced.
- [8]Where no appeal has been commenced the applicant’s options are limited. President Daubney in Hessey-Tenny & Anor v Jones[1] relied upon s. 58(1) of the QCAT Act which provides:
- (1)Before making a final decision in a proceeding, the Tribunal may make an interim order it considers appropriate in the interests of justice, including, for example –
- (a)to protect a party’s position for the duration of the proceeding;
or
- (b)to require or permit something to be done to secure the effectiveness of the exercise of the tribunal’s jurisdiction for the proceeding.
- [9]Is the decision of Member Lember a final decision? “Final decision” is defined in the QCAT Act in a proceeding as:
- (a)Means the tribunal’s decision that finally decides the matters the subject of the proceeding; and
- (b)For Chapter 2 Part 7, division 4 (Enforcing a final decision) – see section 129 which provides:
- (a)
In this division—
final decision, of the tribunal in a proceeding, includes—
- (a)an interim order under section 58; and
- (b)an injunction under section 59; and
- (c)a monetary decision made other than as part of the tribunal’s final decision in the proceeding.
- [10]President Daubney in Hessey-Tenny & Anor v Jones (supra) said:
… it seems to me that in a case such as the present, which falls outside the ambit of s 145, s 58 is sufficient to confer appropriate jurisdiction on the Tribunal to entertain and, if appropriate, allow a stay of a primary order in circumstances where leave to appeal has not yet been granted.
- [11]As I understand no application for leave has been filed at this stage. In Hessey-Tenny & Anor v Jones (supra) an application for leave to appeal had been filed, hence there was a proceeding on foot.[2] Therefore, Member Lember’s decision is a final decision and until an appeal or application for leave to appeal is filed the Tribunal has no jurisdiction to stay the proceeding.
- [12]In Cooks Construction Pty Ltd v Stork Food Systems Aust Pty Ltd,[3] Keane JA, with whom McMurdo P and White AJA agreed, said:
The decision of this Court in Berry v Green suggests that it is not necessary for an application for a stay pending appeal to show ‘special or exceptional circumstances’ which warrant the grant of the stay. Nevertheless, it will not be appropriate to grant a stay unless a sufficient basis is shown to outweigh the considerations that judgments of the Trial Division should not be treated as merely provisional, and that a successful party in litigation is entitled to the fruits of its judgment. Generally speaking, courts should not be disposed to delay the enforcement of court orders. The fundamental justification for staying judicial orders pending appeal is to ensure that the orders which might ultimately be made by the courts are fully effective: the power to grant a stay should not be exercised merely because immediate compliance with orders of the court is inconvenient for the party which has been unsuccessful in the litigation.” (emphasis added)
- [13]
[5] An applicant for a stay must demonstrate some reason why a judgment should not be given immediate effect. The test applicable on an application to stay a judgment pending an appeal is simply expressed as being whether the case is an appropriate one for a stay.
[6] The test reflects a wide discretion reposed in the Court and authority establishes that there are some traditional factors to be taken into account on the application, namely whether:
- (a)there is a good arguable case;
- (b)the applicant will be disadvantaged if the stay is not granted;
and
- (c)there is some compelling disadvantage to the respondent if a stay is granted, which outweighs the disadvantage suffered by the applicant.
- [14]Of course, here the decision is one that has been agreed to by the parties rather than by judgement. As an agreement the Tribunal is powerless to intervene absent fraud or mistake.
A Court (or Tribunal) has no general power to release a party from a contract or to vary its terms. It does not acquire any such power because the parties have elected to incorporate their promises in the form of undertakings tendered to the Court. The principal advantages to the parties in taking that course lie in facilitating proof and enforcement of their agreement. The terms of their promises are formally set out in the public records of the Court and are capable of being summarily enforced by attachment or other process of Court. In addition, if the order or undertaking is of a character that requires working out, the Court may be applied to for its assistance in elucidating its terms so as to render it efficacious in matters of detail. None of this, however, invests the court with a power to vary or determine the agreement of the parties.[5]
- [15]In the circumstance, if the Tribunal has jurisdiction to entertain the application I am of the opinion, that no sufficient reason has been shown to order a stay. However, I do not believe the Tribunal has jurisdiction.
- [16]On either basis, I dismiss the application
Footnotes
[1] [2018] QCATA 131, [24].
[2] See definition of “proceeding” Schedule 2 QCAT Act, which include a proceeding relating to an application for leave to appeal to the appeal tribunal.
[3] [2008] 2 Qd R 453.
[4] [2017] QCA 104.
[5] Siebe Gorman Co Ltd v Pneupac Ltd [1982] 1 WLR 185 at 189, referred with approval by the Full Court in Fylas Pty Ltd v Vynal Pty Ltd (1992) 2 QdR 593 at 601.