Avilake Pty Ltd v Tucker (No 2) [2012] QCATA 261

CITATION: Avilake Pty Ltd v Tucker (No 2) [2012] QCATA 261 PARTIES: Avilake Pty Ltd (Applicant/Appellant) v William Tucker Julie Jean Tucker (Respondent) APPLICATION NUMBER: APL032-12 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Richard Oliver, Senior Member Sandra Deane, Member DELIVERED ON: 12 December 2012 DELIVERED AT: Brisbane ORDERS MADE: Application to stay a decision dismissed. CATCHWORDS: Stay – Where appeal tribunal ordered the respondents to pay a sum of money to the applicant – where appeal to the Court of Appeal – whether grounds of a stay established – exercise of discretion Queensland Civil and Administrative Tribunal Act 2009, s 152 Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453 Chief Executive Officer, Department for Child Protection v S (2007) 98 ALD 329 Kostopoulos v G E Commercial Finance Australia Pty Ltd [2005] QCA 311 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). -- 1 of 3 -- 2 REASONS FOR DECISION [1] On the 19 October 2012 the Appeal Tribunal of QCAT made an order that the Tuckers were to pay to Avilake $24,562.00 plus interest of $8,325.25 by 14 December 2012 for building work carried out by Avilake at the Tuckers’ residence on Macleay Island. [2] On the 8 November 2012 the Tuckers filed an application in the Court of Appeal for leave to appeal to that court the decision of the QCAT Appeal Tribunal. At the same time the Tuckers were advised by the Registrar of the Supreme Court that they could apply to QCAT to stay the decision of the Appeal Tribunal. As a consequence on the 22 November 2012 the Tuckers filed an application to stay a decision in QCAT. Directions were made for the filing of submissions by both parties. [3] Section 152 of the QCAT Act provides that the start of an appeal does not affect the operation of the decision or prevent the taking of action to implement the decision. However under subsection (2) of section 152 the applicant can apply for a stay of the operation of the decision. The power to grant a stay lies with the Court of Appeal or the “tribunal as constituted when the decision was made”. It is under this section that the Tuckers’ application for a stay will be determined by the Appeal Tribunal as constituted for the appeal. [4] The granting of a stay of a decision is an exercise of discretion. The discretion to grant a stay under s 152 is unfettered. The fundamental principle governing applications for a stay is that the successful party is prima facie entitled to the fruits of its judgment, and the question is whether or not there is some particular feature of the case which warrants departure from that position: Berry v Green [1999] QCA 213 per de Jersey CJ at 2. Other considerations include: whether the applicant have an arguable case on appeal;1 would a refusal of a stay render the appeal nugatory;2 does the balance of convenience favour granting the stay?3 [5] The submissions filed by the Tuckers in support of the stay are not particularly helpful in addressing these principles. They do address to a limited degree the prospects of success on the appeal in contending that the Appeal Tribunal should have sent the matter back for rehearing rather that substitute its own decision. Also they were disadvantaged because they tried to address the issues in dispute with the Queensland Building 1 Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453 at 455. 2 Chief Executive Officer, Department for Child Protection v S (2007) 98 ALD 329 at 331. 3 Kostopoulos v G E Commercial Finance Australia Pty Ltd [2005] QCA 311. -- 2 of 3 -- 3 Services Authority but were prevented from doing so because of action taken by Avilake.4 [6] Finally, the Tuckers assert that payment of the monetary sum before a decision of the Court of Appeal would amount to a substantial injustice. [7] None of the submissions overcome the fundamental principle that the successful party is entitled to the fruits of the judgment. There is nothing to suggest that any success in the Court of Appeal would render that decision nugatory. Importantly, as Avilake submits, the Member at first instance found that Avilake did not breach the contract and had an entitlement to the final payment under the contract. [8] We are not persuaded that there are any grounds to grant a stay and therefore the application is dismissed. 4 Section 83 of the Queensland Building Services Authority Act 1991 prevents the Authority from taking any action if a contractual dispute is on foot between the builder and the owner. -- 3 of 3 --