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Holliday v Franklin (Qld) Pty Ltd QCATA 135
Holliday v Franklin (Qld) Pty Ltd  QCATA 135
Franklin (Qld) Pty Ltd
18 August 2015
Orders delivered on 18 August 2015; reasons delivered on 8 September 2015
THE TRIBUNAL ORDERS THAT:
APPEAL – LEAVE TO APPEAL – BUILDING DISPUTE – STAY – whether a stay should be granted in support of enforcement of orders of the QBCC in parallel proceedings – whether a hypothetical risk of the respondent absconding from Queensland should warrant the granting of an application to stay.
F Holliday and D Holliday for the applicants
F Galea for the respondent
REASONS FOR DECISION
- This is an interlocutory application filed 14 July 2015 for a stay of a decision of a Member exercising the building disputes jurisdiction of the Queensland Civil and Administrative Tribunal in BLD093/14 ordering the applicants to pay the respondent $18,488.83 and dismissing the applicants’ counter-application a warrant for possession against the applicant. The respondent resists the application on the basis that the Member committed no discernible or material legal, factual or discretionary error.
- On 18 August 2015 the Appeal Tribunal issued orders ex tempore refusing the application. The Appeal Tribunal attempted to issue reasons for the decision ex tempore, but technical difficulties precluded that from being completed. These are the Appeal Tribunal’s reasons for decision.
- The applicant submits that the Appeal Tribunal should stay the operation of the orders of the Member until the respondent performs certain rectification works to a concrete pool situated on the applicant’s premises. The rectification work was ordered by the Queensland Building and Construction Commission on 29 July 2015.
- An application to stay the operation of a decision pending the finalisation of an application for leave to appeal or appeal should only be granted on grounds relating to the application and the appeal. It should not be granted in support of some collateral purpose or objective.
- The applicant effectively submits that the stay of the operation of BLD093-14 should be granted not on the basis of any inherent defect in the decision, or any detriment or disadvantage which might be caused by the decision, but for the purposes of supporting enforcement of the decision of the Queensland Building and Construction Commission. To grant a stay of BLD093-14 in such circumstances would be an abuse of process.
- The principles governing an application for staying the operation of a decision are well established. To be successful, the applicant must establish:
- the application for leave to appeal and appeal presents an arguable case;
- the applicants will suffer some material disadvantage as a result of the refusal of the stay of the operation of the decision; and
- the balance of convenience favours the grant of the application for stay of the operation of the decision.
- Assuming that the applicants possess an arguable case in their application for leave to appeal and appeal, the applicants have not adduced evidence establishing they will suffer some disadvantage as a result of the refusal of the stay of the operation of the decision.
- The purported disadvantage, namely the requirement to pay $18,488.83 to the respondent, is a natural consequence flowing from the decision of the Member. This disadvantage is not caused by, or logically connected with, the refusal to stay the operation of BLD093-14.
- The applicants claimed that the respondent may abscond from the jurisdiction of Queensland to the Northern Territory or another Australian state or territory if the stay is not granted, meaning that the appeal would be rendered nugatory or futile. Even if absconding to another Australian state or territory would put the respondent beyond the territorial or subject matter jurisdiction of the Appeal Tribunal, which it would not, the applicants have adduced no evidence in support of this proposition.
- Mere conjecture, speculation, or supposition cannot be sufficient to warrant a stay of the operation of the decision of the Member. Therefore, the hypothetical risk of the respondent absconding from Queensland does not warrant granting the application to stay.
- There is no evidence that, aside from the obligation to make the payment, the respondent will suffer some further disadvantage or detriment as a result of the refusal to grant the stay of operation of the original decision. For example, the applicants have not established that the respondent is likely to become insolvent so that the monetary order could not be reversed if the applicants are successful in their appeal.
- Accordingly, the applicants have not established that they are likely to suffer some detriment or disadvantage as a result of the refusal to grant the application to stay. Even if they had, the balance of convenience would not have favoured the applicants as the monetary order may be easily reversed.
- The application to stay the decision dated 16 June 2015 in BDL093-14 is refused.
- Published Case Name:
Holliday v Franklin (Qld) Pty Ltd
- Shortened Case Name:
Holliday v Franklin (Qld) Pty Ltd
 QCATA 135
08 Sep 2015