Edwards v Laraby Pty Ltd t/a Cruising Car Rental [2010] QCATA 5

CITATION: Edwards v Laraby Pty Ltd t/a Cruising Car Rental [2010] QCATA 5 PARTIES: Michael Edwards (Applicant) v Laraby Pty Ltd t/a Cruising Car Rental (Respondent) APPLICATION NUMBER: APL035-10 MATTER TYPE: Appeals HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: President DELIVERED ON: 25 March 2010 DELIVERED AT: Brisbane ORDERS MADE: Application for stay refused CATCHWORDS : PRACTICE AND PROCEDURE – APPLICATION FOR LEAVE TO APPEAL – STAY OF PRIMARY DECISION – where applicant alleges there was no specified return date on the Vehicle Rental Agreement – where the applicant alleges that the Agreement should be void due to various breaches of the Trade Practices Act 1974 (Cth) - whether stay should be granted Queensland Civil and Administrative Tribunal Act 2009, s 145(2) APPEARANCES and REPRESENTATION (if any): APPLICANT : RESPONDENT: -- 1 of 3 -- 2 REASONS FOR DECISION [1] On 25 March 2010 I refused an application by Mr Edwards for a stay of the decision in this matter pending the determination of his application for leave to appeal. He sought reasons for that refusal. [2] Mr Edwards hired a motor vehicle from the respondent Laraby Pty Ltd (trading as Cruising Car Rental). By email correspondence dated 16 March 2009, Laraby advised Mr Edwards that a seven day hire would cost $273.00 per week, or $39.00 per day. According to Laraby, Mr Edwards signed a Vehicle Rental Agreement on 17 March 2009, under specified terms and conditions, that the hire period was for one week and that Laraby would have to be notified of any extensions of hire beyond the return date. The extensions would be charged at the same daily rate. [3] A number of email exchanges disclose that Mr Edwards and Laraby agreed to a number of such extensions. However, beginning in mid-June 2009, Laraby requested Mr Edwards to return the vehicle. Between 8 – 12 July, Laraby also asked Mr Edwards to make full payment for arrears resulting from these extensions, and advised him that criminal charges would be pressed if the vehicle was not returned. On 18 August 2009 Police seized the vehicle. [4] Laraby filed a minor debt claim on 16 September 2009. On 11 January 2010 a Magistrate sitting as an adjudicator in this Tribunal ordered that Mr Edwards pay $3000.00 for monies owed pursuant to the agreement. [5] Mr Edwards alleges that the agreement was ‘open-ended’ with no specified return date, and that he does not owe any further monies to Laraby because the contract was unenforceable as a result of various breaches of the Trade Practices Act 1974 (Cth). [6] The Tribunal has a general power to make an order staying the operation of a decision being appealed against, until the appeal is finally decided: Queensland Civil and Administrative Tribunal Act 2009, s 145(2). [7] The discretion to grant a stay under s 145 is unfettered. The fundamental principle governing applications for a stay is that the successful party is prima facie entitled to the fruits of its judgement, and the question is whether or not there is not some particular feature of the case which warrants departure from that position: Berry v Green [1999] QCA 213 per de Jersey CJ at [3]. [8] The approach taken in decided cases is two-fold: (a) the case must be sufficiently arguable such that leave will be granted and the appeal will succeed; and (b) the balance of convenience must favour the grant of a stay. [9] In the first respect, a stay should not be granted unless a sufficient basis is shown to outweigh the considerations of the original decision, and this usually requires a preliminary assessment of the strength of the applicant’s -- 2 of 3 -- 3 case: Cook's Construction P/L v Stork Food Systems Aust P/L [2008] QCA 322 at [12], [13]. A stay cannot be granted in circumstances where the appeal clearly lacks merit, even if pursued with quixotic enthusiasm: Kostopoulos v G E Commercial Finance Australia P/L [2005] QCA 311 at [68]. [10] In the second respect, where it can be shown that there is an arguable case, considerations of convenience should favour exercising the discretion in favour of the applicant: Ibid, at [68]. The usual question will be whether the applicant would be irremediably prejudiced if the stay is not granted, but the appeal proper is later decided in the applicant’s favour: Cook's Construction P/L (Supra), at [15]. [11] Here the prevailing factors are not complicated. The evidence showed that Mr Edwards was in possession of the hired vehicle between mid-March and mid-August, 2009. Despite some complaints about the functioning of the vehicle, he continued to retain it and to notify Laraby of subsequent extensions. His rental payments fell, however, into arrears. Laraby made numerous requests for him to return the vehicle, and pay the balance due. [12] In those circumstances it was reasonably open on the evidence before the learned Magistrate to find in favour of Laraby, and to order that Mr Edwards pay the balance due for the hire of the vehicle. There is nothing to suggest the decision was plainly against the weight of the evidence, or the merits. [13] In these circumstances, the risk of financial loss to Mr Edwards was required to be balanced against Laraby’s entitlement to the fruits of the judgement in its favour. [14] The order refusing the stay was accompanied by a further order of this appeal tribunal to the effect that the application for leave to appeal will be determined by written submissions from the parties, to be exchanged on a timetable. It cannot in those circumstances be said that Mr Edward’s appeal could be rendered nugatory by the refusal of a stay, or that he could be irremediably prejudiced, even if the appeal proper is ultimately determined in his favour. [15] The balance of convenience therefore does not warrant the exercise of the discretion under s 145(2) in Mr Edward’s favour. -- 3 of 3 --