Thake v Wise & Wise Realty[2023] QCATA 23

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

Summary

1. [1]
   On 17 October 2022 the Tribunal sitting at Southport made an order that Ms Thake pay Ms Wise the sum of $3,180.70 within 28 days (the Decision). 
2. [2]
   Ms Thake wants to appeal the Decision^[1] but to do so, leave is first required.^[2]
3. [3]
   On 30 January 2023 I refused an application by Ms Thake to stay the Decision pending the outcome of the application for leave to appeal and, if successful, appeal. Reasons for my decision to refuse the stay have been requested and now follow.

Primary dispute

4. [4]
   The primary dispute between the parties arose from a contract pursuant to which Ms Wise/Wise and Wise Realty was appointed by Ms Thake to act as selling agent on the sale of Ms Thake’s property. It was a term of the Form 6 appointment that Ms Wise would fund upfront advertising fees of $3,050 on the condition that these costs would be reimbursed by Ms Thake to Ms Wise within seven days of the sale of the property or the termination of the appointment, whichever occurred first.
5. [5]
   By an application for a minor civil dispute – minor debt filed 1 July 2022 Ms Wise claimed $3,050 from Ms Thake, plus costs and interest, being the outstanding reimbursement of advertising fees payable under the agreement following termination of the appointment by Ms Thake.
6. [6]
   In a response filed 29 July 2022 Ms Thake disputed liability for the payment on several grounds, including that:

   1. (a)
      Ms Thake said Ms Wise amended their agreement after she had signed it and without her consent to include the obligation to reimburse advertising expenses; and
   2. (b)
      Ms Thake said errors were made in the way her property was listed online, including describing the property as “sold” not “for sale” and using old photos.
7. [7]
   The parties participated in a hearing of approximately 1¼ hours’ duration that took place on 17 October 2022 in Southport, in which the Decision was made and oral reasons for it given.

Jurisdiction

8. [8]
   It is well established that final decisions should not be treated as merely provisional, and that a successful party in litigation is entitled to the fruits of its judgment.  Therefore, courts and tribunals should not be disposed to delay the enforcement of orders and decisions made.^[3]
9. [9]
   Under section 145(2) of the QCAT Act the Appeal Tribunal may make an order staying the operation of the Decision until the appeal is finally decided. However, there is no appeal until and unless leave to appeal has been granted where required.
10. [10]
    Section 58(1) of the QCAT Act permits the Appeal Tribunal to make an interim order it considers appropriate in the interests of justice, including, for example:

    1. (a)
       to protect a party’s position for the duration of the proceeding; or
    2. (b)
       to require or permit something to be done to secure the effectiveness of the exercise of the tribunal’s jurisdiction for the proceeding.
11. [11]
    A “proceeding” is defined in Schedule 3 of the QCAT Act to generally mean “a proceeding before the tribunal, including an appeal before the appeal tribunal and a proceeding relating to an application for leave to appeal to the appeal tribunal”.
12. [12]
    Therefore, an application to stay a decision that falls outside the ambit of section 145 may be considered under section 58 to allow a stay of a primary order in circumstances where leave to appeal has not yet been granted.^[4]
13. [13]
    McMurdo JA said in Simonova v Department of Housing and Public Works^[5] that “the circumstances must be exceptional before an order in the nature of a stay will be granted, pending an application for leave to appeal”.
14. [14]
    To succeed on a conventional application for a stay, the party applying for the stay must satisfy the Appeal Tribunal that there is a good reason for the stay, including:^[6]

    1. (a)
       that the applicant has a good arguable case on appeal;
    2. (b)
       that the applicant will be disadvantaged if a stay is not ordered; and
    3. (c)
       that competing disadvantage to the respondent, should the stay be granted, does not outweigh the disadvantage suffered by the application if the stay is not granted.

Discussion

15. [15]
    The grounds for the stay were expressed as follows:^[7]

    1. (a)
       Ms Thake raised issues regarding the validity of the Form 6 appointment under the Property Occupations Act 2014 (Qld); 
    2. (b)
       Ms Thake raised consumer protection concerns under the Australian Consumer Laws;
    3. (c)
       Ms Thake raised breach of copyright laws with respect to the photographs used in the listing; and
    4. (d)
       Ms Thake said that she was vulnerable, taken advantage of and has been impacted mentally, physically, and emotionally by the experience.
16. [16]
    The grounds of the application for leave to appeal or appeal were expressed to be:^[8]

This matter was submitted under QCAT’s minor debt jurisdiction. 

This is primarily a contract matter.  QCAT does not have jurisdiction to hear contract matters/disputes in minor debt applications.

The execution of a clause should not be read in isolation of the circumstances surrounding the breach of contract. The contract was rescinded by the applicant before it was terminated.

17. [17]
    Ms Thake itemised a list of her complaints and alleged breaches of contract, which, according to the hearing transcript, appear to be matters that, for the most part, were in evidence and raised in the hearing from which the Decision was made.
18. [18]
    Ms Thake also stated, in an attachment to the application for leave to appeal or appeal, rather than in the stay application that “I will be placed in a position of severe hardship should the decision not be stayed because as a mature age pensioner with ongoing health issues and financial constraints my health and security will be effected quite severely”.

Discussion and findings

Is there a good arguable case on appeal?

Appeal ground 1: contractual disputes do not fall within the minor civil dispute – minor debt jurisdiction

19. [19]
    I find that there is no good arguable case on appeal on this ground.
20. [20]
    Under section 11 of the QCAT Act, the tribunal has jurisdiction to determine a ‘minor civil dispute’, as defined in the Dictionary in Schedule 3 to the QCAT Act.
21. [21]
    The relief sought by the application determines jurisdiction.^[9]
22. [22]
    Section 13(2) of the QCAT Act limits what orders the tribunal may make in ‘final decisions to resolve the dispute’, but they include, for minor civil dispute -minor debt: 

    1. (a)
       an order requiring a party to the proceeding to pay a stated amount to a stated person; and
    2. (b)
       an order that a stated amount is not due or owing by the applicant to a stated person, or by any party to the proceeding to the applicant.
23. [23]
    A minor debt claim is a claim to recover a debt or liquidated demand of money (contrasted with damages), up to the prescribed amount (currently $25,000).^[10] 
24. [24]
    There is no question that the original claim by Ms Wise was for a minor debt, below the prescribed amount.
25. [25]
    The dispute over the debt falls squarely within the minor civil dispute jurisdiction and it was open to the Tribunal at first instance to dismiss the claim, order payment of the claim or order that the amount of the claim was not due and owing.
26. [26]
    On the material currently before the Appeal Tribunal neither the application nor the order made were outside jurisdiction.
27. [27]
    Appeal ground 2: The execution of a clause should not be read in isolation of the circumstances surrounding the breach of contract. The contract was rescinded by the applicant before it was terminated.
28. [28]
    This ground does not so much identify the error alleged to have been made by the Tribunal at first instance, but rather seems to restate that arguments made by Ms Thake which were not successful at first instance.
29. [29]
    Having reviewed the hearing transcript, the Appeal Tribunal observes that the ‘advertisings fees’ clause of the Form 6 was not read by the Tribunal in isolation. To the contrary, the Tribunal, on its own initiative, explored with Ms Thake in the hearing issues such as undue influence, fiduciary duties, the circumstances in which the contract came to be signed, whether the handwritten amendments to the clause had already been made when Ms Thake signed the document (she agreed that they had), and gave Ms Thake an opportunity to examine the original document brought to the hearing by Ms Wise.  Ms Thake’s final submissions to the Tribunal relied heavily on her capacity to pay the debt if the decision went against her.
30. [30]
    On the material currently before the Appeal Tribunal there is no good arguable case on appeal on this ground. 

Will the applicant be disadvantaged if a stay is not ordered? 

31. [31]
    Although Ms Thake did not file medical or financial evidence to support the hardship that she alleges that she will suffer if required to pay the judgment sum, the Appeal Tribunal notes her submission that the debt is not affordable and that the circumstances of the dispute are stressful to Ms Thake.
32. [32]
    As I observed in Kissun v Modern Group (Qld) Pty Ltd^[11] financial hardship is not always, or even often, relevant or persuasive to the tribunal’s decision on a matter of contract:

[49]…In fact, it would be unfair to the parties, in my view, to disregard the terms of the contract they entered into, and the binding commitments, including financial commitments, they freely and willingly made to each other with the full intention of being legally bound to keep those promises in the absence of any vitiating factors.

33. [33]
    There is no obvious disadvantage to Ms Thake of refusing the stay in circumstances where it is not suggested that Ms Wise could not afford to repay the judgement sum if the application for leave to appeal, and the appeal that follows is successful. There is no obvious position of Ms Thake’s to protect by granting a stay to secure the effectiveness of the exercise of the Appeal Tribunal’s jurisdiction on the evidence currently before it.  

What is the competing disadvantage to the respondent, should the stay be granted, and does it outweigh the disadvantage suffered by the applicant if the stay is not granted? 

34. [34]
    There are no submissions on the disadvantage to the respondent of granting the stay, but the obvious disadvantages are that Ms Wise cannot enjoy the fruits of the first instance success, would be delayed in taking enforcement action, and will remain out of pocket for the advertising fees and filing fees incurred and paid by her. On the other hand, interest will continue to accrue on the debt for as long as it remains unpaid to compensate for this delay.

Are the circumstances exceptional?

35. [35]
    On balance, nothing in the material before the Appeal Tribunal satisfies me that the interests of just require the granting of a stay.  The circumstances of this application are not so exceptional as to warrant an interim order being made to stay the Decision pending the outcome of the application for leave to appeal or appeal.  

Decision

36. [36]
    For those reasons, the application to stay was refused.
37. [37]
    As a party has requested an oral hearing, the application for leave to appeal or appeal is listed for an oral hearing in Southport at a date and time to be fixed. Notice of the hearing will be sent to the parties in due course.