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Wright v Milne[2019] QCATA 53

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Wright v Milne [2019] QCATA 53

PARTIES:

ERIN EDITH PATRICIA WRIGHT

(appellant)

v

DAVID MILNE

(respondent)

APPLICATION NO/S:

APL046-19

ORIGINATING APPLICATION NO/S:

MCDQ184/17 (Beenleigh)

MATTER TYPE:

Appeals

DELIVERED ON:

Date of orders 1 April 2019

Reasons delivered on 17 April 2019

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Browne

ORDERS:

  1. The time for David Milne to comply with Direction 7 of the directions dated 11 March 2019 is extended to by 4:00pm on 25 March 2019.
  2. Unless otherwise ordered, the application to stay the decision  dated 13 February 2019 in Minor Civil Dispute claim numbered Q184/17 is granted subject to the following:
  1. (a)
    Erin Edith Patricia Wright must within seven (7) days from the date of this order pay the amount of $22,761 into the Trust Account for Gall Standfield and Smith Solicitors of Level 5, 91 Scarborough Street, Southport, Queensland.
  2. (b)
    The amount of $22,761 is to be held in trust until the determination of the application for leave to appeal or appeal.
  3. (c)
    If Erin Edith Patricia Wright fails to pay the amount of $22,761 as ordered in paragraph 2(a) above, the application to stay a decision in Minor Civil Dispute claim number Q184/17 may be refused without further notice to the parties.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where application for a stay of an order made in the minor civil disputes jurisdiction – whether stay should be granted – where the original decision awarded money to the respondent – whether balance of convenience favours the granting of a stay – whether the appeal will be rendered nugatory if stay granted – whether stay should be granted

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 145

Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685

Barker v Lavery (1885) 14 QB 769

Berry v Green [1999] QCA 213

JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 1) [1983] 2 Qd R 243

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

  1. [1]
    Erin Wright has filed an application for leave to appeal or appeal a decision made by an Adjudicator sitting in the minor civil disputes jurisdiction. Relevantly, the Tribunal ordered on 13 February 2019 in MCDQ184/17 that Ms Wright pay to David Milne the sum of $22,761.00 within seven days.[1]
  2. [2]
    It is non-contentious that the minor civil dispute proceeding relates to an agreement on certain terms between the parties for the removal of a house. The house was to be moved from a storage facility and transferred to Mr Milne’s property or land. It is also non-contentious that Ms Wright is the holder of the business name of ‘Atlas House Removers, Building Recyclers, Restumpers, Demolishers and Earthmovers’; and that a deposit in the amount of $20,000 was required by Mr Milne upon signing the agreement.
  3. [3]
    Ms Wright, together with the application for leave to appeal or appeal, filed an application to stay the decision in MCDQ184/17. Ms Wright says, amongst other things, that the Tribunal’s decision was against the evidence and/or against the weight of the evidence.[2] Further, Ms Wright says that Tribunal made a number of errors in determining whether the contract was ‘cancelled or otherwise legally ended’.[3] Both parties have had an opportunity to file written submissions and material in relation to the application to stay.[4]
  4. [4]
    The stay application was determined by me on 1 April 2019 without an oral hearing on the basis of the written submissions and material filed by the parties.[5] Ms Wright has requested reasons for my decision now set out below.

Should the application to stay be granted?

  1. [5]
    The Appeal Tribunal has the power to stay the operation of a decision being appealed until the appeal is finally decided.[6] It is settled law that the power to grant a stay involves the exercise of a discretion. A party seeking a stay must demonstrate a basis for a stay. The balance of convenience and the competing rights of the parties must be considered in all of the circumstances.[7]
  2. [6]
    The fundamental principle governing applications for a stay is that the successful party is entitled to the fruits of its judgment.[8] Other relevant factors include whether success on appeal would be rendered nugatory were a stay not granted, that must be balanced against the expectation of the successful party to the fruits of the judgment.[9]  The onus rests on the applicant to persuade me that such ‘special circumstances’ do exist.[10]  A stay may be granted in respect of a money order if it can be established that if the appeal succeeds, the respondent would not be able to repay the money.[11] In JC Scott Constructions v Mermaid Waters Pty Ltd (No 1)[12] the Court in citing Barker v Lavery[13] held:

It is also established that an onus rests upon an applicant for a stay to persuade the Court that such special circumstances do exist. In Barker v Lavery the Earl of Selbourne L.C. at 770 said:

“The defendant is not entitled to have the application granted as a matter of course. Evidence ought to have been adduced to show that the plaintiff would be unable to repay the costs if he should be unsuccessful before the House of Lords. As to the request for time to make an affidavit about the plaintiff’s means, we cannot accede to it; those who apply for a stay of execution, must come before is prepared with all necessary materials”.[14]

  1. [7]
    In this matter, the amount ordered to be paid by Ms Wright is not insignificant. Ms Wright contends that should payment be made by her as ordered and she is successful on appeal, recovery of the amount ordered would be difficult and would likely lead to further proceedings and costs to the parties.[15] Further, Ms Wright submits, amongst other things, that in the alternative, should the stay not be granted, the amount ordered be deposited into her solicitor’s trust account pending the outcome of the appeal.[16]
  2. [8]
    Mr Milne submits that Ms Wright should not be entitled to a stay and that she should be required to pay the judgment amount.[17] Mr Milne says, however, that he would be satisfied with a stay being granted on the condition that Ms Wright pay the amount ordered into his solicitor’s trust account and that the funds be disbursed in accordance with the determination of Ms Wright’s current application for leave to appeal or appeal.[18]
  3. [9]
    Here, Ms Wright has failed to convince me that a stay should be granted until the determination of the application for leave to appeal or appeal. Ms Wright raises a number of contentions in her written submissions filed in support of the application to stay that are relevant to the determination of the application for leave to appeal or appeal. For example, Ms Wright contends that she has been denied procedural fairness because she was not provided with certain documents relevant to the minor civil dispute proceeding. I accept Ms Wright may have an arguable case but this is one of a number of matters I must consider in determining the application to stay.
  4. [10]
    Mr Milne is entitled to the fruits of his judgment however the amount ordered to be paid by Ms Wright is not insignificant. I accept Ms Wright’s submission that if she is successful on appeal, recovery of the amount may lead to further proceedings and costs to the parties.
  5. [11]
    I also accept Mr Milne’s submission that Ms Wright should not be entitled to a stay until the determination of the application for leave to appeal or appeal. Mr Milne does not object, however, to an order being made in similar terms to that proposed by Ms Wright. That is, for the amount ordered to be held in trust by a solicitor until the determination of the application for leave to appeal or appeal.
  6. [12]
    In accepting Mr Milne’s submissions that have been filed approximately five days late, I find that there is no prejudice to Ms Wright in allowing Mr Milne’s application to extend time to file his submissions on 25 March 2019 given that Mr Milne agrees to an order being made in similar terms proposed by Ms Wright. Further, in the application to extend time, Mr Milne says that he did not understand the Appeal Tribunal directions because he thought he had a decision in his favour and he contacted his solicitor to ‘understand the paperwork’.[19] I find that Mr Milne’s explanation for the short delay in filing his written submissions in compliance with the Appeal Tribunal directions, to be satisfactory.
  7. [13]
    In this matter, I find that the balance of convenience favours the granting of a stay on the basis that the amount ordered in MCDQ184/17 be paid by Ms Wright into Mr Milne’s solicitors trust account within seven (7) days and the amount will be held in trust until the determination of the application for leave to appeal or appeal. I order accordingly.

Footnotes

[1]  MCD044/19 and MCDQ184/17 were consolidated by order of the Tribunal dated 24 January 2019 concerning an application for minor debt filed by Atlas House Removers, Building Recyclers, Restumpers, Demolishers and Earthmovers against David Milne on 14 January 2019 in MCD044/19 and in MCDQ184/17 concerning a request for decision by default filed by David Milne against Erin Wright on 8 February 2018.

[2]  Application to stay a decision filed on 21 February 2019.

[3]  Ibid. See Submissions for the application to stay a decision filed by the applicant on 15 March 2019.

[4]  Submissions for the application to stay a decision filed by the applicant on 15 March 2019 and written submissions of the respondent in response to the application to stay filed on 25 March 2019 together with an application to extend time filed on 25 March 2019.

[5]  See Appeal Tribunal Directions dated 11 March 2019.

[6]  QCAT Act, s 145.

[7]Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-5.

[8]Berry v Green [1999] QCA 213, [2].

[9]JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 1) [1983] 2 Qd R 243, 247.

[10]  Ibid.

[11]  See JC Scott Constructions, 247 and Barker v Lavery (1885) 14 QB 769 at 770.

[12]  [1983] 2 Qd R 243, 247.

[13]  (1885) 14 QBD 769.

[14]  See JC Scott Constructions, 247 and Barker v Lavery (1885) 14 QB 769, 770.

[15]  Submissions filed by the applicant on 15 March 2019.

[16]  Application to stay filed on 21 February 2019.

[17]  Submissions filed by the respondent on 25 March 2019.

[18]  Ibid.

[19]  Application to extend time filed by the respondent on 25 March 2019.

Close

Editorial Notes

  • Published Case Name:

    Erin Edith Patricia Wright v David Milne

  • Shortened Case Name:

    Wright v Milne

  • MNC:

    [2019] QCATA 53

  • Court:

    QCATA

  • Judge(s):

    Member Browne

  • Date:

    17 Apr 2019

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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