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McKenna v Macktrans Pty Ltd[2020] QCATA 72

McKenna v Macktrans Pty Ltd[2020] QCATA 72

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

McKenna v Macktrans Pty Ltd [2020] QCATA 72

PARTIES:

Brian McKenna

(applicant/appellant)

 

V

 

MacKtrans pty ltd

(respondent)

APPLICATION NO/S:

APL094-20

ORIGINATING APPLICATION NO/S:

MCDO61324/18 (Brisbane)

MATTER TYPE:

Appeals

DELIVERED ON:

20 May 2020

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Fitzpatrick

ORDERS:

  1. The application to stay a decision is refused.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where no leave to appeal yet granted – whether good arguable case on appeal – whether disadvantage demonstrated – balance of competing interests of parties

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 58, s 142, s 145

Cooks Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] 2 Qd R 453

Day v Humphrey [2017] QCA 104

Hessey-Tenny & Anor v Jones [2018] QCATA 131

REPRESENTATION:

 

Applicant:

KAJ Wilson of Ron Lawson Lawyer

Respondent:

N John of KJK Legal

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

Background

  1. [1]
    The applicant, Brian McKenna, has made an application for leave to appeal or appeal a decision of the Tribunal, dated 7 February 2020.  The current applicant was the respondent to the proceedings below, and was ordered to pay to the current respondent, Macktrans Pty Ltd (‘Macktrans’), an amount of $16,280.00 within thirty (30) days of the decision in full satisfaction of Macktrans’ minor debt claim.
  2. [2]
    Macktrans performed freight forwarding services for the applicant between 18 April 2018 and 31 May 2018.[1]   That the work was performed, or the money claimed in the invoices was owning, does not appear to be in dispute.
  3. [3]
    By way of response filed on 1 November 2019 in the originating proceeding, the applicant contended that he had paid the funds to an account fraudulently provided by a hacker and not to the respondent’s account.  The applicant contended that the fault lay with the respondent.  The Tribunal decided the matter in favour of Macktrans.
  4. [4]
    The applicant sought a stay of a decision of the Tribunal dated 7 February 2020.[2]  On 8 May 2020, I decided to refuse the applicant’s application for a stay.  The applicant requested reasons for my decision, which are set out below.

What must be established for a stay to be granted?

  1. [5]
    The applicant contends that the Tribunal made errors of both fact and law in reaching its decision.[3]  As the decision which is sought to be appealed is a minor civil dispute and some of the alleged errors are of fact, leave to appeal is required.[4]  Leave has not yet been granted to appeal.
  2. [6]
    The effect of a decision by the tribunal subject to an appeal is not affected by the filing of an appeal.[5]  However, the Appeal Tribunal may make an order staying a decision of the Tribunal, pending final determination of the appeal, on application by a party or on its own initiative.[6] 
  3. [7]
    Where leave to appeal has not yet been granted, the appeal tribunal may only grant a stay of a decision in ‘exceptional circumstances’.[7]  The established principles for granting a stay include:
    1. (a)
      that a successful party in litigation is generally entitled to the fruits of its judgment.[8]
    2. (b)
      whether the party applying for the stay has demonstrated a good reason for why the judgment should not be given immediate effect.  This test reflects a wide discretion.  Relevant factors are:
      1. whether there is a good arguable case;
      2. whether the applicant will suffer disadvantage if the stay is not granted; and
      3. whether there is some compelling disadvantage to the respondent if a stay is granted, which would outweigh the disadvantage suffered by the applicant.[9]
  4. [8]
    The applicant provided submissions in support of the stay application.[10] The submissions outline several alleged errors of fact and/or law by the Tribunal, however the submissions do not expressly address any other relevant factors. 
  5. [9]
    The respondent provided submissions objecting to a stay.[11]  The respondent points to a two year delay since issuing the four relevant invoices, as evidence of significant prejudice to it. The applicant was ordered to pay the judgment sum within 30 days of 7 February 2020.  The respondent contends that the applicant’s case will fail, both on leave to appeal and, if granted, on appeal.

Should a stay be granted?

  1. [10]
    On review of the file and of the submissions by the parties, I consider that a stay should be refused, for the following reasons:
    1. (a)
      the applicant has not demonstrated any disadvantage if the stay is not granted;
    2. (b)
      the applicant has not provided any evidence that, if the judgment amount was paid to the respondent, but the applicant was ultimately successful in the appeal, he would be unable to recover the money from the respondent;
    3. (c)
      a successful party in litigation is entitled to the fruits of its claim; and
    4. (d)
      the applicant’s grounds of appeal are at best arguable, however this factor is not sufficient for the balance of convenience to favour the award of a stay.
  2. [11]
    Accordingly, I order that the application by Brian McKenna to stay the decision made 7 February 2020 is refused.

Footnotes

[1]  Macktrans Pty Ltd’s application for minor civil dispute – minor debt filed on 18 October 2018 in MCDO61324/18 (Brisbane).

[2]  Application to stay a decision filed on 3 April 2020.

[3]  Application for leave to appeal or appeal filed on 3 April 2020.

[4] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142(3) (‘QCAT Act’).

[5]  QCAT Act, s 145(1).

[6]  QCAT Act, s 145(2), s 58(1).

[7] Hessey-Tenny & Anor v Jones [2018] QCATA 131 at 24[4] per Justice Daubney, President.

[8] Cooks Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] 2 Qd R 453 at [12].

[9] Day v Humphrey & Ors [2017] QCA 104.

[10]  ‘Outline of submissions – Application to stay a decision QCAT’ filed on 23 April 2020.

[11]  ‘Respondent’s Outline of Submissions – Opposition to Application to Stay a Decision QCAT’ filed on 27 April 2020.

Close

Editorial Notes

  • Published Case Name:

    Brian McKenna v Macktrans Pty Ltd

  • Shortened Case Name:

    McKenna v Macktrans Pty Ltd

  • MNC:

    [2020] QCATA 72

  • Court:

    QCATA

  • Judge(s):

    Member Fitzpatrick

  • Date:

    20 May 2020

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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