Pivavarova v Michelsen[2018] QCATA 1

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

AMENDED REASONS FOR DECISION

1. [1]
   This is an application by Tatiana Pivovarova for a stay of the decision of the Tribunal made on 10 July 2017.
2. [2]
   Before considering the stay application it is necessary to summarize the long history of the matter.
3. [3]
   Ms Pivovarova, the home owner, contracted with a licensed builder, Peter Michelsen, to build a new home at Brookwater. She was not happy with the outcome. and brought proceedings in the Tribunal against Mr Michelsen. Ultimately Mr Michelsen brought an application in the Tribunal claiming moneys owed by Ms Pivovarova. The matter was not decided in her favour by the Tribunal, and she appealed the decision.
4. [4]
   A decision on the appeal was delivered on 10 June 2015 and a number of Ms Pivovarova’s grounds of appeal were upheld. The Appeal Tribunal set aside the decision and remitted the matter to the Tribunal to be determined according to law.
5. [5]
   The same Member of the Tribunal determined the matter on the papers and delivered her decision on 10 July 2017. Again, she found against Ms Pivovarova.
6. [6]
   Ms Pivovarova has appealed that decision.
7. [7]
   The application before this Appeal Tribunal is to stay that latest decision, which was that Ms Pivovarova pay the sum of $40,990 together with interest from 12 July 2012 at a rate of 15% to Mr Michelsen by no later than 1 August 2017.
8. [8]
   Carmody J in La Macchia v Department of Housing and Public Works^[1] set out the relevant principles to be considered when deciding a stay application under s. 145 (2) of the QCAT Act. His Honour said:

“[7] A successful party is entitled to the fruits of its litigation. The orders of the original decision-maker are intended to be final, and not merely provisional subject to the applicant initiating an appeal. This is particularly the case where the applicant requires leave to appeal, and is not entitled to appeal as of right. Accordingly, the applicant must furnish compelling reasons before the Appeal Tribunal will grant a stay of an original decision.

[8] An application to stay the decision of an original decision-maker requires the Appeal Tribunal to be satisfied that: (a) the applicant possesses an arguable case; (b) the applicant will suffer some kind of harm, detriment, prejudice, injury, damage or other disadvantage if the stay is not granted; and (c) the balance of convenience favours granting the stay of the decision. The failure to establish any one of these elements should result in the refusal of the application to stay the decision.”

9. [9]
   In Cook's Construction Pty Ltd v Stork Food Systems Aust Pty Ltd^[2] Keane JA (as he then was) considered (inter alia) the relevance of the appeal prospects in exercising the discretion to grant a stay, and said:

“[12] The decision of this Court in Berry v Green [1999] QCA 213 suggests that it is not necessary for an applicant for a stay pending appeal to show “special or exceptional circumstances” which warrant the grant of stay. Nevertheless, it will not be appropriate to grant a stay unless a sufficient basis is shown to outweigh the considerations that judgements 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 judgement. …

[13] In cases where this Court is able to come to a preliminary assessment of the strength of the appellant's case, the prospects of success on appeal may weigh significantly in the balance of relevant considerations. The prospects of success will obviously tend to favour the refusal of a stay if the prospects of the appeal can be seen to be very poor. That is because, if there is obviously little prospect of ultimate reversal of existing orders, the concern to ensure that the existing orders can be overturned without residual injustice will have less claim on the discretion than might otherwise be the case.”

10. [10]
    The first Appeal Tribunal found the following errors of law with the Tribunal's original decision:

    1. (a)
       The learned Member did not provide adequate reasons for her decision that Ms Pivovarova, by taking possession, waived her right to contend practical completion had not been achieved;
    2. (b)
       The learned Member's reasons did not clearly indicate whether she considered the doctrine of substantial performance and the parties were not afforded an opportunity to make submissions about the availability of the doctrine;
    3. (c)
       The learned Member's reasons did not clearly address whether or not there was compliance with the contract with respect to the provisions of all relevant certificates and warranty documents which was a prerequisite to a finding whether Practical Completion had been reached;
    4. (d)
       The learned Member’s reasons did not indicate whether she took into account Prime Cost adjustments and other variations set out in Mr Michelsen's reconciliation document.
11. [11]
    As already noted, the matter was reheard and determined on the papers by the learned Member on 10 July 2017.
12. [12]
    In that decision, the Tribunal considered the issue whether Practical Completion had been reached. The learned Member found that Ms Pivovarova’s concerns about deviations from the plan were trifling but if she was wrong she considered that the contract had been substantially performed by Mr Michelsen which entitled him to payment less the reasonable costs of rectifying and completing minor defective and/or incomplete work.
13. [13]
    In relation to the provision of certificates and other documents the learned member accepted Mr Michelsen's evidence that he had provided Ms Pivovarova with all of the documents in his possession. The learned Member observed that it was a non-specific complaint and found that there was no specific evidence that any documents were missing.
14. [14]
    Ms Pivovarova now appeals that decision. She has not sought leave to appeal, consequently, her appeal is confined to questions of law. The grounds on which she appeals are far from brief nor are they as specific as required. Many of her complaints relate to matters arising from the first hearing which were not subject to the first Appeal or if they were, they were not found in her favour. So far as can be ascertained, the substance of her objections relevant to the decision the subject of the current appeal, are: –

    1. (a)
       That the Member made her decision based on the doctrine of substantial performance without any submissions from the parties about the applicability of the doctrine;
    2. (b)
       That Ms Pivovarova was denied natural justice as the Member, in making a decision based on the doctrine of substantial performance, did not give her a full chance to prepare and submit a case in rebuttal;
    3. (c)
       The original claim by Mr Michelsen did not disclose an entitlement to final payment on the basis of the doctrine of substantial performance;
    4. (d)
       Mr Michelsen failed to provide sufficient evidence of his entitlement for the Prime Cost Items or Provisional sums pursuant to the contract;
15. [15]
    In support of her application for a stay Ms Pivovarova submits, essentially, that her case is so strong that the appeal must succeed. She submits that the learned Member made the same mistakes that were successfully appealed on the first occasion. Ms Pivovarova further submits that she was not given an opportunity to make submissions about the applicability of the doctrine of substantial performance.
16. [16]
    Ms Pivovarova also submits that there is an extremely high prospect that Mr Michelsen would not be able to repay the monies and interest if the decision of the Tribunal was set aside. She cites as evidence of his inability to repay the monies the fact that he claimed financial hardship to avoid payment of the appeal costs, that he is retired and he and his wife live on the pension. She also relies on the fact that Mr Michelsen owes funds of approximately $50,000 to his daughter. In a novel argument Ms Pivovarova submits that if Mr Michelsen receives the funds it would jeopardise his pension and he would be forced to live off the funds.
17. [17]
    On 2 September 2015 Ms Pivovarova filed an Application for miscellaneous matters seeking an adjournment of the rehearing of the matter because she had not received the reasons of the Appeal Tribunal until 22 July 2015 and had not been given a fair opportunity to make an informed decision. That hearing date was vacated. 
18. [18]
    Prior to the hearing of the matter, the subject of this appeal, Ms Pivovarova brought two further Applications for miscellaneous matters. The applications appear to be identical but one was filed on 21 September 2015 the other on 29 September 2015. In those applications, she sought leave to amend her original response and counter application in accordance with the reasons of the Appeal Tribunal and further that she be allowed to lodge further evidence in support of the amended response and/or counter application.
19. [19]
    Both applications were dismissed on 3 April 2017. That decision has not been appealed.
20. [20]
    Ms Pivovarova brought another Application for miscellaneous matters which was filed on 6 April 2017. In that application, she sought that the applicant, produce information regarding the reasons relied upon in his original application or whether he had changed the nature and reasons for his original application or whether he would base his case on different reasons, grounds and/or facts. That application was refused on the papers on 5 May 2017. It was not appealed.
21. [21]
    It is tolerably clear from all of the material, that Ms Pivovarova was well aware of the Appeal Tribunal's findings in respect of the learned Member's failure to accord the parties an opportunity to make submissions about the application of the doctrine. She filed the above Applications for miscellaneous matters with submissions indicating she had a good knowledge of the doctrine and its potential application to the matter. Indeed, she submitted as part of her submission that:

There will be an error in law if the Tribunal won't allow the Respondent to amend her response and counter application including lodgement of further evidence and will allow the Applicant to proceed with the substantial performance claim during the new hearing.

22. [22]
    We are of the opinion that Ms Pivovarova had ample opportunity of placing material before the learned Member but chose not to do so. There has been no denial of natural justice.
23. [23]
    At the hearing of the first appeal Mr Michelsen acknowledged that Ms Pivovarova paid $6,830 for Prime Cost items^[3] and that the contract ought to be reduced by that amount. The Appeal Tribunal did not disturb the finding of the Member that the reasonable cost of rectifying and completing minor works was $1,680.^[4] The original sum of $47,800 ordered to be paid was reduced on the second hearing to $40,990. The date from which interest was to be paid was changed to 12 July 2012 in accordance with the Appeal Tribunal’s observations.
24. [24]
    We are of the opinion that Ms Pivovarova’s prospects in any appeal are poor.
25. [25]
    Ms Pivovarova has not pointed to any harm or other disadvantage that she will suffer if the stay is not granted.
26. [26]
    The high point of her argument is the spectre that, if she is successful on the appeal, the money paid under the decision will not be refunded to her.  The matters she refers to do nothing more than raise this as a possible outcome.  They do not, in our view, outweigh the fundamental position that Mr Michelsen has a present entitlement to the fruits of the decision.
27. [27]
    For these reasons, the application for a stay is refused.