Gedoun Constructions Pty Ltd v Agius
[2022] QCATA 188
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- Unreported Judgment
- Gedoun Constructions Pty Ltd v Agius[2022] QCATA 188
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Gedoun Constructions Pty Ltd v Agius[2022] QCATA 188
Gedoun Constructions Pty Ltd v Agius[2022] QCATA 188
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Gedoun Constructions Pty Ltd v Agius [2022] QCATA 188 |
PARTIES: | gedoun constructions pty ltd (applicant/appellant) v mark agius (respondent) |
APPLICATION NO/S: | APL278-22 |
ORIGINATING APPLICATION NO/S: | BDL308-18 |
MATTER TYPE: | Appeals |
DELIVERED ON: | 14 November 2022 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Acting Deputy President Brown |
ORDERS: | The application to stay a decision is refused. |
CATCHWORDS: | ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – WHEN REFUSED – whether applicant able to demonstrate a proper basis for a stay – whether considerations favour granting stay – where applicant failed to demonstrate proper basis for stay Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 24(2)(a). s 142(3)(a)(iii), s 145(1) , s 145(2). Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685. Day v Humphrey [2017] QCA 104. Gedoun Constructions Pty Ltd v Agius [2021] QCAT 250. Gedoun Constructions Pty Ltd v Agius (no. 2) [2022] QCAT 318. Hessey-Tenny & Anor v Jones [2018] QCATA 131. Virgtel Ltd & Anor v. Zabusky & Ors (No 2) [2009] QCA 349 |
APPEARANCES & REPRESENTATION: | This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) |
Applicant: | Russells |
Respondent: | Becker Watt Lawyers |
REASONS FOR DECISION
- [1]On 14 November 2022 I refused an application to stay the operation of a costs order made in the proceedings below. My reasons for the decision follow.
- [2]Gedoun undertook building work for Mr Agius. The parties fell into dispute. Gedoun commenced proceedings in the Tribunal claiming from Mr Agius monies it said remained owing under the building contract. Mr Agius counter-claimed for damages for breach of contract and breach of statutory warranty.
- [3]After a hearing over fourteen days the Tribunal gave its decision (the principal decision).[1] Gedoun was ordered to pay Mr Agius $222,190.00 plus interest. Gedoun has appealed the principal decision (the substantive appeal). On 31 August 2022 the Tribunal ordered Gedoun to pay Mr Agius’s costs to be assessed on the standard basis on the District Court scale (the costs decision).[2] Gedoun has appealed the costs decision (the costs appeal).
- [4]On 5 July 2022 I refused an application by Gedoun to stay the principal decision. On 14 November 2022 I refused an application by Gedoun to stay the costs decision.
- [5]In support of the application to stay the costs decision, Gedoun says:
- (a)By s 22(3) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) the Tribunal may stay the operation of a decision if a review of the decision has been started;
- (b)By s 22(4) of the QCAT Act a stay may be ordered if such an order is considered desirable taking into consideration the matters in s 22(4)(a) to (c);
- (c)If Gedoun is successful in the substantive appeal there is a real risk that the costs decision will be set aside or that it is appropriate that the costs of the proceedings below be determined in a different way;
- (d)Gedoun has paid to Mr Agius the amount ordered pursuant to the original decision. Mr Agius will suffer no irremediable prejudice if the costs decision is stayed;
- (e)Gedoun is concerned that if it is required to pay the costs, Mr Agius may not have the resources to repay such costs if Gedoun is successful in the costs appeal;
- (f)The parties are likely to expend a great deal of time and money to assess the quantum of the costs and Mr Agius is unlikely to suffer any irremediable prejudice by waiting a short period of time for the assessment and payment of the costs;
- (g)The balance of convenience favours the grant of the stay;
- (h)The costs the parties will incur to prepare a costs statement and notice of objections are likely to be $50,000.00 to $75,000.00.[3]
- (a)
- [6]Mr Agius opposes the application to stay the costs decision. Mr Agius’s submissions also address the operation of s 22 of the QCAT Act. In addition, he says that it is not in the public interest for a private individual to be kept out of the fruits of litigation nor have finality in relation to the matter of costs.
Consideration
- [7]The start of an appeal against a decision of the tribunal does not affect the operation of the decision or prevent the taking of action to implement the decision.[4] The tribunal may however make an order staying the operation of a decision being appealed against until the appeal is finally decided.[5]
- [8]
- [9]The power to order a stay where leave to appeal is required is found in s 58(1) of the QCAT Act. The circumstances must be exceptional before a stay will be granted pending an application for leave to appeal.[8]
- [10]The usual principles to be applied in considering an application to stay a decision are:
- (a)Is there a good and arguable case?
- (b)Will the applicant be disadvantaged if the stay is not granted?
- (c)Is there some compelling disadvantage to the respondent if a stay is granted which outweighs the disadvantage suffered by the applicant?[9]
- (a)
- [11]I pause here to observe that the parties’ submissions as to the application of s 22 of the QCAT Act are misconceived. The proceeding at first instance was brought in the tribunal’s original jurisdiction. Section 22 of the QCAT has application only in proceedings brought in the tribunal’s review jurisdiction and, in any event, s 22(3) relates only to a stay of a reviewable decision.[10]
- [12]Absent special or exceptional circumstances, Mr Agius is entitled to the fruits of his victory by enforcing the final costs orders notwithstanding the present appeals.[11] The onus is upon Gedoun to demonstrate why the stay of the costs decision should be granted and Mr Agius denied the benefit of the costs order in his favour.[12] For the reasons that follow, I am not persuaded that Gedoun has demonstrated special or exceptional circumstances that would support granting the stay application.
- [13]I accept that Gedoun has an arguable case. If Gedoun is successful in the substantive appeal then it has arguable prospects of success in the costs appeal.
- [14]I also accept that there is likely to be some financial disadvantage to Gedoun if the stay is not granted. But this is no more than the disadvantage to any party required to meet an order for costs in circumstances where the substantive decision is under appeal. On the other hand, and as I have observed, Mr Agius is entitled to the benefit of the costs decision.
- [15]Gedoun’s concerns that if it is required to pay the costs, Mr Agius may not have the resources to repay such costs if Gedoun is successful in the costs appeal is unsupported by any further particulars or evidence as to Mr Agius’s financial circumstances.
- [16]Taking into consideration the failure by Gedoun to demonstrate special or exceptional circumstances and the matters relevant to the balance of convenience, I am not persuaded that this is case in which the discretion to stay the costs decision should be exercised in Gedoun’s favour.
- [17]The application to stay a decision is refused.
Footnotes
[1] Gedoun Constructions Pty Ltd v Agius [2021] QCAT 250.
[2] Gedoun Constructions Pty Ltd v Agius (no. 2) [2022] QCAT 318.
[3] Affidavit of Millicent Kathryn Russell dated 19 Octobe2022.
[4] QCAT Act, s 145(1).
[5] Ibid, s 145(2).
[6] Ibid, s 142(3)(a)(iii).
[7] Hessey-Tenny & Anor v Jones [2018] QCATA 131.
[8] Ibid at [24].
[9] Day v Humphrey [2017] QCA 104.
[10] See QCAT Act, s 17 and s 24(2)(a).
[11] Virgtel Ltd & Anor v. Zabusky & Ors (No 2) [2009] QCA 349
[12] Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at 694.