Allen & Anor v Contrast Constructions Pty Ltd [2020] QCATA 132

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Allen & anor v Contrast Constructions Pty Ltd [2020] QCATA 132 PARTIES: REECE ALLEN (first applicant) CHANTELL TAYLOR (second applicant) v CONTRAST CONSTRUCTIONS PTY LTD (respondent) APPLICATION NO/S: APL181-20 ORIGINATING APPLICATION NO/S: BDL219-19 MATTER TYPE: Appeals DELIVERED ON: 16 September 2020 HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Allen QC, Deputy President Member Traves ORDERS: The application to stay the decision of 21 May 2020 on an interlocutory application made in BDL219-20 is refused. The matter is to be listed for a Directions Hearing at a time and date to be advised. CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL - GENERAL PRINCIPLES – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where stay of a decision on an interlocutory application sought pending appeal of that decision – whether a stay can be granted when leave to appeal the decision has not been granted – whether an interim order in the nature of a stay should be made. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 47, s 58, s 142, s 145 Austman Pty Ltd v Mount Gibson Mining Ltd [2012] WASC 202 -- 1 of 12 -- 2 Cook's Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] 2 Qd R 453 Day v Humphrey [2017] QCA 104 Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [1999] WASCA 144 Hessey-Tenny & Anor v Jones [2018] QCATA 131 Kime v Klepper [2020] QCAT 207. La Macchia v Department of Housing and Public Works [2015] QCATA 143 Leonard v Hugh Reilly Real Estate [2020] QCATA 24 Redding v Simmons [2016] QCATA 100 REPRESENTATION: Applicant: R Allen of Project Legal Respondent: Construct Law Group Pty Ltd 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 This proceeding commenced with an application for building dispute filed by Contrast Constructions Pty Ltd (the builder) on 19 August 2019. The application sought money owing under the contract and damages in the sum of $1 207 594.47 against Reece Allen and Chantell Taylor (the homeowners). The homeowners filed a conditional response on the basis they did not consider the Tribunal had jurisdiction to determine the matter. The homeowners then applied for an order dismissing the proceedings pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) or, alternatively, staying proceedings until the parties had complied with the dispute resolution provisions of their building contract (the jurisdiction application). The jurisdiction application was determined by a Senior Member on 21 May 2020. The Senior Member held that the Tribunal had jurisdiction to decide the building dispute and accordingly, that the matter should not be dismissed under s 47 of the QCAT Act. The Senior Member also determined that the proceedings should not be stayed on the basis the parties had not complied the contractual dispute resolution provisions in their building contract. The Senior Member also made directions for the future conduct of the proceedings. The homeowners appealed that decision and applied to stay the directions made for the future conduct of the building dispute, pending the determination of the appeal. The proceeding before us is the application brought by the homeowners to stay the decision of 21 May 2020. [4] By s 142(3)(a)(ii) of the QCAT Act, leave to appeal an interlocutory decision is required. The decision of 21 May 2020 is an interlocutory decision. The application for leave to appeal filed by the homeowners lists the following proposed grounds of appeal: -- 2 of 12 -- 3 1. The Tribunal erred in finding it has jurisdiction to hear the proceeding, when it does not. 2. The Tribunal erred in finding Clause 42 and Special Condition 13 did not survive termination of the Contract, when the clauses survived termination. 3. The Tribunal erred as to the proper construction of Clause 42 and Special condition 13 of the contract. 4. The Tribunal erred in failing to find that the respondent had not satisfied ss 77(1) and (2) of the Queensland Building and Construction Commission Act 1991 (Qld) (QBBC Act) either at all, or in the alternative, before commencing proceedings in the Tribunal. 5. The Tribunal erred in failing to find that the respondent had not satisfied ss 77(1) and (2) of the QBBC Act in relation to the co-respondent, Ms Taylor, at all. 6. The Tribunal erred in failing to dismiss the proceedings for want of jurisdiction. 7. The Tribunal erred in failing to find that Clause 42 and Special Condition 13 survived termination and apply to the dispute the subject of the proceedings because rights the subject of the proceeding relied on by the respondent, such as the respondent’s claim for an extension of time and delay damages, concern rights which arose before termination. 8. In the alternative, the Tribunal erred in failing to grant a stay pending compliance by the parties with Clause 42 and Special Condition 13 of the contract. In the application to stay the decision, the homeowners identified their reasons for seeking the stay as follows: 1. The Decision of Senior Member Brown dated 21 May 2020 is under appeal by the applicants to the QCAT Appeal Tribunal. Under s 145(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the Tribunal constituting the appeal may order a stay. 2. The Decision of Senior Member Brown includes orders dated 21 May 2020 which wrongly assume the applicants (respondents to BDL219-19) have submitted their claims against the respondent (applicant in BDL219-19) to the Tribunal’s jurisdiction and wrongly assumes the applicants have filed a cross application in the Tribunal. 3. The Orders dated 21 May 2020 issued by Senior Member Brown were issued without consultation with the parties and include orders and timeframes neither party can reasonably comply with. 4. The respondent (applicant in BDL219-19) has recently instructed solicitors who reasonably should be given time to obtain evidence and familiarise themselves with the matter. 5. No orders should be given until the Tribunal’s jurisdiction is determined and a Directions Hearing is conducted whereby each party can be heard as to the proper orders required for the future conduct of the matter. In submissions filed in support of the stay application the homeowners contend that where the decision is challenged on a question of law it is appropriate for the Tribunal to grant the stay. However, the homeowners “accept that the stay application is also -- 3 of 12 -- 4 to be decided taking guidance from general principles applied by the courts in considering stay applications”. The homeowners, in addressing those principles submit that, if a stay is not granted and the appeal is successful, the parties will have incurred unnecessary additional costs and that any decisions and orders made in the interim will be of no effect because the tribunal will have proceeded without having jurisdiction to do so. The homeowners argue they have a strong prospect of success and there are ‘serious questions of law to be tried’ regarding the Tribunal’s jurisdiction. The homeowners identify the issues they say need to be resolved and submit that the decision is ‘contrary to binding superior court authority’. The homeowners point out that the claim totals $1 207 594.47 plus interest and costs and would normally be within the jurisdiction of the Supreme Court. They argue that the matter is not trivial and that the Tribunal exercising jurisdiction effectively ousts the Supreme Court’s ‘inherent jurisdiction to hear the matter’. The homeowners also argue that because the appeal of the decision of Senior Member Brown raises matters of law, no further evidence is required which means that any delay caused by a stay, were it granted, would be limited. Finally, the homeowners argue that because the decision they are appealing is not a final decision, that a stay would not deprive the builder of the ‘fruits of litigation’ and that any prejudice to the builder would be limited to ‘merely delay in the proceeding’. Indeed, the applicants argue that delay caused by the stay would assist the builder in giving it extra time to comply with any directions regarding the future conduct of the underlying proceedings in BDL219-18. The builder opposes the stay application. It submits that the homeowners have the onus of satisfying the Tribunal that the discretion to grant a stay ought be exercised after taking into account the following factors, namely whether: the homeowners have a good arguable case; the homeowners will be disadvantaged if the stay is not granted; and there is some compelling disadvantage to the builder which outweighs the disadvantage suffered by the homeowners. The builder argues that the homeowners do not establish how the Senior Member erred in finding there had been compliance with s 77(2) of the QBBC Act or how the Senior Member erred in finding the dispute resolution clause did not survive termination and that, even if it did, a stay to enable the parties to comply with the clause was not warranted in the circumstances. Relevant principles The homeowners relied upon s 145 of the QCAT Act. Section 145 of the QCAT Act gives the Tribunal power to make an order staying the operation of a decision “being appealed against” until the appeal is finally determined. In Hessey-Tenny v Jones1 Daubney J held that the power under s 145 did not extend to a decision where leave to appeal was required and had not yet been obtained.2 This decision was recently followed by Allen DCJ in Leonard v Hugh Reilly Real Estate.3 Here, leave is yet to be granted. Hence, s 145 is not relevant. 1 [2018] QCATA 131. 2 Ibid at [20]. 3 [2020] QCATA 24 at [8]. -- 4 of 12 -- 5 [12] In the Supreme Court, where a stay is sought of a decision in respect of which leave to appeal is required, the Supreme Court relies on its inherent jurisdiction. In exercising that jurisdiction McMurdo JA held in Simonova v Department of Housing and Public Works:4 “I accept, as is submitted for the respondent, that, in this context, the circumstances must be exceptional before an order in the nature of a stay will be granted, pending an application for leave to appeal.” (emphasis added) [13] The Tribunal does not have inherent jurisdiction. However, it has been held that the Tribunal may make such an order under s 58(1) of the QCAT Act. [14] Section 58(1) of the QCAT Act provides: “(1) Before making a final decision in a proceeding, the tribunal may make an interim order it considers appropriate in the interests of justice, including, for example – (a) to protect a party’s position for the duration of the proceeding; or (b) to require or permit something to be done to secure the effectiveness of the exercise of the tribunal’s jurisdiction for the proceeding.” [15] “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”. [16] In Hessey-Tenny v Jones,5 Daubney J held that, given the width of the definition of ‘proceeding’, that s 58 empowers the Tribunal to make an interim order staying a decision where leave to appeal is required but not yet granted where the applicant can demonstrate exceptional circumstances such as to warrant the stay.6 [17] For the reasons that follow we are not satisfied that exceptional circumstances exist such as to warrant the making of an interim order in the nature of a stay. Consideration [18] The grounds of appeal relied upon by the homeowners either relate to the application of s 77(2) of the QBBC Act or to the dispute resolution clause in the building contract between the parties. We will consider each set of grounds in turn. Section 77 of the QBCC Act [19] Section 77 of the QBBC Act relevantly provides: (1) A person involved in a building dispute may apply, as provided under the QCAT Act, to the tribunal to have the tribunal decide the dispute. (2) However, the person may not apply to the tribunal unless the person has complied with a process established by the commission to attempt to resolve the dispute. 4 [2018] QCA 60 5 [2018] QCATA 131 6 Ibid at [24]; followed by Allen DCJ, Deputy President of the Tribunal, in Leonard v Hugh Reilly Real Estate [2020] QCATA 24. -- 5 of 12 -- 6 [20] The applicants contend that the builder failed to comply with s 77(2) of the QBBC Act and that, therefore, the Tribunal lacks jurisdiction to decide the dispute. [21] The Senior Member made the following findings relevant to the application of s 77 of the QBBC Act at [42]-[45] of the decision: [42] It is reasonably clear on the material before the tribunal that: (a) A building contract dated 17 February 2016 was entered into between the parties; (b) The respondents purported to terminate the contract on 21 November 2017; (c) Contrast purported to terminate the contract on 1 December 2017; (d) The respondents subsequently made a claim under the Home Warranty Scheme in respect of incomplete building works; (e) On 20 March 2018 the QBCC wrote to Contrast and advised it had decided the respondents had not properly terminated the contract and they had no entitlement to pursue a claim under the Home Warranty Scheme; (f) The respondents commenced proceedings in the tribunal seeking a review of the QBCC decision (the review proceedings); (g) On 12 April 2018 the QBCC wrote to Contrast referring to ‘the defective building dispute’ at the respondents’ property, noting that as the respondents had not provided Contrast with reasonable access to the site to rectify the defects the ‘current case’ was closed. The letter also advised Contrast that it had ‘participated in the QBCC’s dispute resolution process as prescribed by legislation …’; (h) On 28 June 2019 the QBCC wrote to Contrast advising that: (i) the dispute between the parties related to a building contract had been terminated; (ii) the dispute was outside the scope of the QBCC’s Early Dispute Resolution process; (iii) Contrast had participated in the QBCC’s dispute resolution process as prescribed by legislation; (i) On 19 August 2019 the present proceedings were commenced; (j) On 4 November 2019 the QBCC wrote to Contrast advising that it had ‘reached the end of (the QBCC’s) dispute process’; (k) On 27 February 2020 the tribunal decided the review proceedings and confirmed the original decision by the QBCC; (l) On 2 March 2020 the QBCC wrote to Contrast advising that their letter of 28 June 2019 contained a typographical error (that error being the reference to the male respondent as the builder) and enclosing a further letter dated 20 March 2020 (in the same terms as the letter of 28 June 2019) correcting the error. [43] I am satisfied that the ‘dispute resolution process as prescribed by legislation’ referred to in the letters from the QBCC to Contrast dated 12 April 2018 and 28 June 2019 (noting the subsequent clarification by the QBCC regarding the contents of the latter correspondence referred to above) is a -- 6 of 12 -- 7 reference to ‘a process established by the commission’ as referred to in s 77(2) of the QBCC Act. [44] In circumstances where the QBCC is satisfied that a party to a building dispute has complied with a process established by the commission for the purposes of s 77(2), what form that process might take, and whether parties to a building dispute have complied with such a process, is a matter for the QBCC. [45] I am satisfied that Contrast complied with s 77(2) of the QBCC Act before commencing the proceedings. [22] The homeowners contend that the Senior Member was in error. They argue that the Senior Member erred in failing to consider and apply Redding v Simmons,7 a decision they say required the builder to establish it had complied with s77(1) of the QBBC Act before commencing proceedings. [23] In Redding there had been no compliance with s 77 because the builder had not attempted to submit to a Commission process. Here, the Senior Member found the builder had engaged with the Commission and received a letter stating the dispute fell outside their early dispute resolution process. The Senior Member found, on that basis, s 77 of the QBCC Act had been satisfied. It is not for us to make a final determination of this issue. It has not been demonstrated at this point that the decision was necessarily wrong. [24] The nature and extent of the process established by the QBCC for the purposes of s 77(2) was in issue in Kime v Klepper.8 In Kime it was held that there was no dispute resolution process established by the QBCC as contemplated by s 77(2) of the QBCC Act, which deals with a commercial building dispute or a domestic building dispute in circumstances where the contract has been terminated.9 Accordingly, it was held that in circumstances where a domestic building contract had been terminated it would not be a breach of s 77(2) of the QBCC Act for the applicants to have omitted to attempt to participate in a process established by the QBCC to resolve the dispute.10 [25] Here, again without wishing to determine the issue, it was open for the Senior Member to find that the builder did attempt to comply with a process established by the commission to attempt to resolve the dispute. The builder received a formal notification from the QBCC that it had attempted to do so but was outside the scope of the established process. The dispute resolution clause in the building contract [26] The homeowners argue, in the alternative, that the Senior Member erred in not staying the proceedings until the builder had complied with the dispute resolution provisions of the contract. They submit that a serious question of law raised by the appeal is whether the Senior Member was bound to follow superior court and court of appeal decisions including Downer EDI Mining Pty Ltd v Wambo Coal Pty Ltd;11 Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd;12 Pipeline 7 [2016] QCATA 100. 8 [2020] QCAT 207. 9 Ibid at [28]. 10 Ibid at [30]. 11 [2012] QSC 290 12 [1999] WASCA 144 -- 7 of 12 -- 8 Services WA Pty Ltd v Atco Gas Australia Pty Ltd;13 and Western Australian Land Authority v Simto Pty Ltd.14 In particular, the homeowners submit that there was error in failing to consider, follow and apply Eastern Metropolitan Regional Council and find the requirement for the provision of a notice of dispute, to negotiate and the requirement to submit “claims arising out of or in connection with the contract” survives termination. [27] The builder submits that the homeowners do not identify in their submissions how the Senior Member erred in making his findings and why the Senior Member’s analysis of superior court decisions was flawed. The builder submits the Tribunal was correct to find that, on a proper construction of the clause, it did not survive termination. Further, in the alternative and assuming it did, that a stay pending compliance with the clause was not warranted for the reasons relied upon by the Tribunal. [28] Clauses 42.1 and 41.2 of the contract, as varied by special condition 13, provide: 42.1 Notice of Dispute If a difference or dispute (together called a ‘dispute’) between the parties arises in connection with the subject matter of the Contract, including a dispute concerning: a) a Superintendent’s direction; or b) a claim: i) in tort; ii) under statute; iii) for restitution based on unjust enrichment or other quantum meruit; or iv) for rectification or frustration, or like claim available under the law governing the Contract, then either party shall, by hand or by certified mail, give the other and the Superintendent a written notice of dispute adequately identifying and providing details of the dispute. Notwithstanding the existence of a dispute, the parties shall, subject to clauses 39 and 40 and subclause 42.4, continue to perform the Contract. 42.2 Conference Within 14 days after receiving a notice of dispute, the parties shall confer at least once to resolve the dispute or to agree on methods of doing so. At every such conference each party shall be represented by a person having authority to agree to such resolution or methods. All aspects of every such conference except the fact of occurrence shall be privileged. If the dispute has not been resolved within twenty eight (28) days of service of the notice of dispute, either party may refer the dispute to: (a) the dispute resolution processes administered by the QBCC; 13 [2014] WASC 10 14 [2001] WASC 136 -- 8 of 12 -- 9 (b) QCAT; or (c) a court. Any reference of the dispute to the QBCC is without prejudice to either party’s right to refer any dispute to QCAT where entitled under Legislative requirements or otherwise to a court. [29] Clause 39 deals with default or insolvency. The clause sets out in detail what is to occur if either the principal or contractor defaults. In either case a Notice to Show Cause may be given to the other party. The Notice is to set out the alleged substantial breach and that the offending party is required to show cause why the innocent party should not exercise a right referred to in the clause, which includes termination. [30] In relation to whether the clause survived termination the Senior Member said: [16] Contractual provisions may survive termination however it must be apparent from the terms of the agreement and of the particular provision that it is intended to continue governing the relations of the parties even after the rest of the contract is gone. Contractual rights and obligations that may survive termination include those arising when there is a breach of contract (eg clauses obliging a party to pay compensation or damages for breach); obligations ancillary to the main purpose of the contract (eg arbitration clauses, choice of forum clauses); and clauses regulating the secondary obligations of parties (eg liquidated damages clauses). [17] As has been outlined, arbitration clauses are an example of a contractual provision that survive termination. Clause 42 is not however an arbitration clause. [18] Whether clause 42 survives termination is a question of construction of the contract. There is no express provision in the contract providing for the survival of specific clauses in the event of the contract being terminated. In Richmond v Moore Stephens Adelaide Pty Ltd the Full Court of the Supreme Court of South Australia stated: The general rule … can be expressed as a single rule: termination of a contract discharges those obligations of a party that are not contingent upon its subsistence or future events dependent on its subsistence or future obligations discharged by its termination. Whether an obligation is or is not contingent in this sense is to be determined as a matter of construction of the contract. [19] The nature of a contractual provision may lead to a construction that the obligation is not contingent and survives termination of the contract. [20] Clause 42 provides for a notice to be given by a party in the event of a ‘dispute’. The contract defines a ‘dispute’ as ‘a difference or dispute (together called a ‘dispute’) between the parties … in connection with the subject matter of the Contract.’ The definition is a broad one and potentially captures disputes across a wide spectrum including disputes of a relatively minor nature through to disputes that may result in termination of the contract. Upon giving a notice of dispute the parties are obliged to engage in what may be best described as an informal dispute resolution process. After 28 days, a party may, inter alia, commence proceedings in the tribunal. [21] Clause 42 does not provide for a well defined, structured dispute resolution process in which the parties are required to participate and from which agreement might come. Aside the requirement for the delivery of the dispute -- 9 of 12 -- 10 notice and the stipulated time periods, clause 42 leaves dispute resolution entirely in the hands of the parties in an informal and unstructured way. Unlike the various authorities to which I have referred, clause 42 does not require the parties to proceed to a formal mediation or other dispute resolution process. It should be noted that any requirement for parties to engage in arbitration would fall foul of the prohibition on arbitration clauses found in the QBCC Act. [22] Clause 42 required that the parties confer to resolve the dispute or to agree on methods of doing so. The parties were only required to meet once and without the assistance of a third party. If the dispute was not resolved the parties were at liberty to proceed to litigation. Such a process was not one through which a dispute about whether termination by one of the parties was valid was likely to achieve any meaningful outcome. [23] On a proper construction of the contract, clause 42 provided for an informal dispute resolution process to enable the parties to attempt to resolve issues relating to the build as and when those issues arose. There is nothing in clause 42 that leads to the conclusion that, on a proper construction of the contract, the clause was intended to survive termination. To construe clause 42 so as to require the parties to engage in what could be described as a potentially very brief and very informal alternative dispute resolution process before proceeding to formal litigation, in the context of a purported termination of the contract, would be to give the clause a significance it was not intended to have. Such a construction would be commercially nonsensical for the reasons I have outlined. It follows that compliance or otherwise by Contrast with clause 42 is irrelevant to Contrast’s entitlement to commence these proceedings. [31] The homeowners argue the Senior Member misapplied Pipeline Services WA Pty Ltd v ATCO Gas Australia Pty Ltd15 and failed altogether to apply Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd.16 [32] The argument is one which, no doubt, the homeowners wish to agitate on the appeal, but it is not in our view so clearly correct as to give rise to exceptional circumstances. Pipeline Services WA Pty Ltd is arguably distinguishable, involving a different dispute clause and, importantly, a clause which required the parties to arbitrate prior to instituting proceedings. This is arguably a very different thing to the clause in question which merely requires a notice of dispute to be given and the parties to confer once to either resolve the dispute or to decide upon a method of doing so. If the parties cannot agree on either, either party may refer the matter to the QBCC, QCAT or a court. [33] The Senior Member did not refer to Eastern Metropolitan in his reasons. This is not, necessarily, an error. The Senior Member considered several other authorities in some detail of superior courts relevant to the issue and concluded that whether clause 42 survived termination was a question of construction of the contract.17 The Senior Member went on to conclude that on a proper construction, clause 42 provided for an informal dispute resolution process to enable the parties to attempt to resolve issues relating to the build as and when those issues arose and that there was nothing in the clause to lead to the conclusion that it was intended to survive termination (emphasis added). [34] We note that Eastern Metropolitan involved a clause similar in some respects to the clause under consideration. The clause, relevantly, provided that if a dispute between 15 [2014] WASC 10 16 [1999] WASCA 144 17 Reasons at [18]. -- 10 of 12 -- 11 the contractor and principal “arises out of or in connection with the Contract” then either party shall deliver a notice of dispute to the other. The clause continued: Notwithstanding the existence of a dispute, the Principal and Contractor shall continue to perform the Contract, and subject to Clause 44 [which addresses issues of default and insolvency], the Contractor shall continue with the work under the Contract and the Principal and the Contractor shall continue to comply with Clause 42.1 [which deals, inter alia, with payment claims and certificates]. A claim in tort, under statute or for restitution based on unjust enrichment or for rectification or frustration, may be included in an arbitration. [35] In that case, parts of the dispute between the parties had already been referred to arbitration when the contract was terminated. Upon termination one of the parties sought to institute proceedings in the Supreme Court. It was held that the process in the dispute resolution clause applied to disputes regarding termination and/or repudiation of the contract. The words “arises out of or in connection with the contract” were held to be of the “widest import and, on their plain meaning, [to] encompass a dispute as to the circumstances of termination of the contract, regardless of whether or not the parties regard[ed] the contract as any longer being on foot.”18 It was also held that the fact there was no scope for the continued performance of the contract (as referred to in the clause) did not lead to the conclusion that a dispute of that kind fell outside the clause, just that that part of the clause only applied to circumstances where there were outstanding obligations under the contract. Further, that this conclusion was not altered by the fact that the words “subject to clause 44” which addressed issues of default and insolvency, was a condition only to the continued performance of the work under the contract by the contractor and with continued compliance with clause 42 dealing with the payment of claims and other ancillary matters.19 [36] We note that the circumstances of the case are different in that the question was whether, in the exercise of the Master’s discretion, a stay should be granted in relation to part of a dispute where other parts of the same dispute were already the subject of arbitration. We note also that, although the clause has some similar phrases, it arguably differed in material respects, in particular in that it does not refer the parties to a formal process of arbitration but merely requires the parties to confer once in an attempt to either resolve their dispute or agree to a method of resolving it. [37] There is an issue as to whether the Senior Member, who also assumed for the purposes of his decision, that the clause survived termination, erred in the exercise of his discretion to refuse to stay the proceedings until the requirements provided for by clause 42 had been met. [38] The exercise of a discretion, particularly in relation to an interlocutory decision, should not be interfered with lightly. We refer to Eastern Metropolitan where Steyler J held:20 61 It must also be borne in mind that, as was said by Olsson J in Crusader Resources NL v Santos Ltd, unreported, SCt of SA; Full Court No 2635 of 1989; 21 March 1990, to which we were referred by counsel for the appellant, at 40: 18 [1999] WASCA 144 at [40]. 19 Ibid at [43]. 20 Pidgeon J and Ipp J agreeing, [1], [2]. -- 11 of 12 -- 12 "It is a truism, as the High Court stressed in Paringa Mining and Exploration Co Plc v North Flinders Mines Ltd & Ors (1988) 165 CLR 452 at 457, that if, in relation to exercises of discretion not going to a determination of substantive rights, a tight rein is not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice." [39] Looking at the exercise of discretionary considerations, we do not accept that there is irremediable prejudice to the homeowners if the stay is not granted. The homeowners refer to the expenses they will unnecessarily incur if the Tribunal is found, on appeal, not to have jurisdiction. It is true that some expense will be incurred. However, those costs will go to the preparation of the matter generally, in circumstances where a resolution of the matter through the dispute resolution process under the contract is by no means assured. Moreover, it is always open to the parties to agree to mediate the matter, or to apply for an order for a compulsory conference. We note that, already, there has been an unsuccessful compulsory conference. [40] The homeowners have not demonstrated that if a stay is not granted, a successful appeal would be nugatory. They have not otherwise pointed to any irremediable harm which they might suffer if a stay is refused. Accordingly, the homeowners have failed to demonstrate any relevant disadvantage if the stay is refused. [41] On the other hand, if a stay was ordered, this would cause further delay to the progress of proceedings which, given the amount the builder is seeking, could cause significant and irremediable harm to it if further delay is incurred. [42] In all the circumstances nothing which has been argued persuades us that the Senior Member made any error in the exercise of his discretion such as would justify the interference of the Appeal Tribunal. [43] In all of those circumstances, having regard to the fact that leave to appeal has not yet been granted, the homeowners, in our view, have not demonstrated that this is an exceptional case warranting the grant of a stay. [44] Accordingly, for the reasons above, our decision is that the application for a stay of the learned Senior Member’s decision of 21 May 2020 is refused. We note that the time frames for directions made by the Senior Member to facilitate the progression of the matter have now passed. New directions will need to be made. We therefore list the matter for a further Directions Hearing. -- 12 of 12 --