Tuck v Kanti-Paul[2023] QCATA 4

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

REASONS FOR DECISION

1. [1]
   This is an application to stay a decision of a magistrate^[1] pending the hearing and determination of an application for leave to appeal and any appeal.  The appellant brought a proceeding against the respondent by a minor civil claim – tenancy dispute, to determine to whom the rental bond was to be paid.  On 22 August 2022 the magistrate ordered that the bond be paid, as to $1,075.30 to the landlord, and as to the balance of $524.70, to the tenant, the appellant.  On the same day the appellant filed an application for leave to appeal or appeal from that decision, and on 2 September filed an application to stay the decision.  That is the application now before me. 
2. [2]
   Directions for the applications were given by a Senior Member of the Tribunal on 14 September 2022, including for the filing of submissions by the parties.  Submissions for the application for leave to appeal have been filed by the appellant, but no submissions have been filed by either party for this application.  I have a copy of the file for the proceeding at first instance, but it does not include a transcript of the hearing, or any transcript or other document setting out the reasons for the decision. 

Power to stay

3. [3]
   So far as this is an appeal on a question of law, there is power in the QCAT Act s 145 to stay the decision pending the resolution of the appeal.  So far as it is an application for leave to appeal, there is power to stay the decision in the QCAT Act s 58.^[2] 

Test for stay

4. [4]
   The fundamental justification for staying judicial orders pending appeal is to ensure that the orders which ultimately might be made on the appeal are fully effective.^[3]  Another way of putting it is that a stay is necessary to preserve the subject matter of the litigation.^[4]  The usual factors taken into account are whether there is a good arguable case, whether the applicant would be materially disadvantaged without a stay, and whether the balance of convenience favours a stay.^[5]  The issue of a stay commonly arises in circumstances where there is good reason to believe that, unless the stay is granted, there is at least a substantial risk that the appeal will be rendered futile. 
5. [5]
   In Cherwell Creek Coal Pty Ltd v BHP Queensland Coal Investments Pty Ltd [2019] QCA 276 for example, the appeal was to be brought against an order that certain commercially sensitive documents were to be disclosed.  In Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 the stay was granted because otherwise, under the order to be appealed against, certain liens would be cancelled and whatever security they gave to the applicant would be lost. 
6. [6]
   Another situation where a stay may be granted is where there is a judgment for payment of money to someone who may well be unable to repay it if the judgment is set aside.^[6]  The important part of this is the existence of a real risk of an inability to repay, something to be shown by the appellant.  If payment is to be made to a person who may well spend a significant part of the money before any appeal is decided, that can be relevant.  In the present case however all that is known about the respondent is that he owns the unit which was the subject of the tenancy which gave rise to this dispute, a factor which suggests that, if he is ordered to repay money, he is likely to be able to do so.  There is certainly no evidence to the contrary.  The mere fact that the appellant wishes to challenge the decision under appeal, and may prefer the money to remain in the hands of the Residential Tenancy Authority, is not a justification for ordering a stay. 

Consideration

7. [7]
   In the absence of reasons it is not clear on what basis the order of the Magistrate was made.  The file contains a copy of an agreement which provides for the unit to be professionally cleaned at the end of the tenancy at the expense of the tenant.  The appellant in submissions referred to the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (“the Act”) s 188(4), which does not in terms require that the cleaning be done professionally.  That may raise an issue under the Act s 53, and there may also be an issue under the Act s 54 if this term is inconsistent with the standard terms of a tenancy agreement under a regulation in force at the relevant time. 
8. [8]
   The appellant also asserted that the Magistrate refused to hear oral submissions from him at the hearing, which may raise an issue as to breach of the rules of natural justice.^[7]  In the circumstances, particularly in the absence of reasons, I am prepared to accept that the appellant has shown a good arguable case for the appeal, although of course I have not heard any response from the respondent. 
9. [9]
   It has however not been shown that the appellant will be materially disadvantaged in the absence of a stay.  The Appeal Tribunal has power to order that the respondent pay to the appellant any amount which, in the light of the decision on the appeal, the respondent has been overpaid, and there is no particular reason to expect that such an order would not be complied with.  As well, the decision at first instance is not to be treated as merely provisional pending any appeal, and prima facie effect should be given to it.^[8]  In these circumstances, the balance of convenience does not arise. 
10. [10]
    The appellant has not shown that circumstances exist which make it appropriate to stay the decision of the magistrate pending the decision on his application for leave to appeal and any appeal.  The application filed 2 September 2022 is dismissed.