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Wheeler & Smith v Body Corporate For Calypso Towers[2015] QCATA 162

Wheeler & Smith v Body Corporate For Calypso Towers[2015] QCATA 162

CITATION:

Wheeler & Smith v Body Corporate For Calypso Towers & Anor [2015] QCATA 162

PARTIES:

Robert Wheeler

(First Applicant/Appellant)

Michelle Smith

(Second Applicant/Appellant)

v

Body Corporate For Calypso Towers (CTS 27849)

(First Respondent)

MW Stone Pty Ltd

(Second Respondent)

APPLICATION NUMBER:

APL292-15

MATTER TYPE:

Appeals

HEARING DATE:

17 September 2015

HEARD AT:

Brisbane 

DECISION OF:

Justice Carmody

DELIVERED ON:

12 November 2015

DELIVERED AT:

Brisbane

ORDERS MADE:

THE APPEAL TRIBUNAL ORDERS THAT:

  1. The application to stay the decision dated 4 June 2015 in application BCCM0241-2015 is refused.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL  – BODY CORPORATE AND COMMUNITY TITLES DISPUTE – STAY OF DECISION – where the applicants filed an application for leave to appeal and appeal against the decision of an Adjudicator to order the lodgement of an amended Community Management Statement reallocating certain exclusive spaces to the second respondent – where the applicants filed an application to stay the operation of the decision – where the applicants failed to file submissions or evidence on the causation of any material detriment as a result of the refusal of the application to stay – where the applicants failed to file meaningful submissions on whether the balance of convenience favoured the grant of the stay – whether the application to stay should be granted.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 32, 122, 145

Briginshaw v Briginshaw (1938) 60 CLR 336

Commissioner of Taxation v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220Woodgate Beach Asian Pacific Realty Pty Ltd v Gerard [2010] QCATA 64

Kanai v Department of Housing and Public Works (Unreported, Appeal Tribunal of the Queensland Civil and Administrative Tribunal, Carmody J, 15 September 2015)

La Macchia v Department of Housing and Public Works [2015] QCATA 143

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 (QCAT Act).

REASONS FOR DECISION

  1. [1]
    The applicants filed an application to stay the operation of a decision of an Adjudicator under the Body Corporate and Community Management Act 1997 (Qld) ordering that:
    1. the first respondent prepare a Community Management Statement giving effect to the reallocation of exclusive use areas between lots 105 and 73, as recorded in the agreement dated 27 September 2006;
    2. the first respondent must lodge the Community Management Statement by 3 September 2015; and
    3. the first respondent must lodge a request to record the Community Management Statement with the Queensland Land Registry on 3 September 2015.
  2. [2]
    On 17 September 2015 the Appeal Tribunal refused the application to stay. The applicants subsequently filed an application for written reasons under s 122(1) of the QCAT Act. These are the reasons for the decision of the Appeal Tribunal to refuse the stay.

APPLICATION TO STAY

  1. [3]
    The Queensland Civil and Administrative Tribunal, in exercising its appellate jurisdiction, may make an order staying the operation of a decision being appealed against until the appeal is finally decided.[1]
  2. [4]
    The Appeal Tribunal has comprehensively explicated the principles governing the determination of an application to stay in several recent decisions.[2]  Therefore, it is sufficient to note that the applicants must establish:
    1. that they have an arguable case in support of the application for leave to appeal and appeal;
    2. that they will suffer some material detriment as a result of the refusal to stay the primary decision; and
    3. that the balance of convenience favours the granting of the stay of the primary decision.
  3. [5]
    The starting point, however, is that a successful party is entitled to the fruits of its litigation, and orders issued at first instance should not be regarded as merely “provisional” subject to an appeal.[3] Therefore, a party must proffer cogent reasons, proved to the required civil standard,[4] for the Appeal Tribunal to exercise its jurisdiction to stay the primary decision.
  4. [6]
    The applicants filed an application for leave to appeal and appeal against the decision of the Adjudicator on 14 July 2015. The applicants filed an interlocutory application for a stay of the primary decision on 24 August 2015.
  5. [7]
    The applicants proffered the following grounds in support of their application to stay the operation of the decision of the Adjudicator:

1. The facts relating to the adjudicators (sic) case have been mistaken.

2. The application of law has been incorrectly applied (sic).

-  Refer (sic) QCAT application for details.

  1. [8]
    The Appeal Tribunal has reviewed the applicants’ submissions filed in support of their application for leave to appeal and appeal. Unsurprisingly, the submissions relate almost exclusively to the merits of the decision of the primary decision-maker. The Appeal Tribunal contrasts this with the robust submissions filed by the second respondent controverting the application.
  2. [9]
    The Appeal Tribunal observes that the applicants in these proceedings have committed a common error in filing an application to stay the operation of the primary decision. The Appeal Tribunal does not grant a stay of the operation of the primary decision as a matter of course. Merely having a prima facie meritorious appeal – indeed, even a prima facie overwhelmingly meritorious appeal – is not sufficient to obtain a stay of the operation of the primary decision. The applicants must also show that they will sustain a material detriment caused by the refusal of the stay, and that the balance of convenience favours a stay of the operation of the primary decision.
  3. [10]
    The applicants have the onus of proof of establishing the necessary facts to warrant the Appeal Tribunal staying the operation of the primary decision. Assuming that the applicants possess a moderately strong appeal, the applicants’ submissions do not establish that any material detriment will be caused to the applicants by the refusal of the stay, as distinct from the natural consequences of the operation of the primary decision. Furthermore, the applicants do not appear to have made an attempt to reconcile the relevant factors in considering the balance of convenience.
  4. [11]
    The submissions of the second respondent establish that significant prejudice will be occasioned to the second respondent in the event that the operation of the primary decision is stayed. Furthermore, it would seem that the Community Management Statement could be properly amended to reflect the rights and interests between the parties in the event that the applicants are successful in the appeal. As the original decision appears to be reversible without material inconvenience or disadvantage being caused to the applicants, this fact weighs heavily against the grant of the stay.
  5. [12]
    The Appeal Tribunal is not satisfied that the refusal of the stay will cause the applicants to suffer material detriment, harm, injury or disadvantage. Furthermore, the Appeal Tribunal is not satisfied that the balance of convenience favours a stay of the primary decision.
  6. [13]
    Accordingly, the Appeal Tribunal refused the application to stay the primary decision.

ORDERS

  1. [14]
    It is the decision of the Appeal Tribunal that:
    1. The application to stay the decision dated 4 June 2015 in application BCCM0241-2015 is refused.

Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 145(2).

[2] La Macchia v Department of Housing and Public Works [2015] QCATA 143; Kanai v Department of Housing and Public Works (Unreported, Appeal Tribunal of the Queensland Civil and Administrative Tribunal, Carmody J, 15 September 2015).

[3] Commissioner of Taxation v The Myer Emporium Ltd (No 1) (1986) 160 CLR 220, 222-223; Woodgate Beach Asian Pacific Realty Pty Ltd v Gerard [2010] QCATA 64, [8].

[4]  For a discussion of the civil standard of proof, see: Briginshaw v Briginshaw (1938) 60 CLR 336, 362.

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Editorial Notes

  • Published Case Name:

    Wheeler & Smith v Body Corporate For Calypso Towers & Anor

  • Shortened Case Name:

    Wheeler & Smith v Body Corporate For Calypso Towers

  • MNC:

    [2015] QCATA 162

  • Court:

    QCATA

  • Judge(s):

    Carmody J

  • Date:

    12 Nov 2015

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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