Callil v Kosonen

CITATION:	Callil v Kosonen [2017] QCATA 149
PARTIES:	Peter Callil (Applicant/Appellant)
v
Samuel Kosonen (Respondent)
APPLICATION NUMBER:	APL312-17
MATTER TYPE:	Appeals
HEARING DATE:	On the papers
HEARD AT:	Brisbane
DECISION OF:	Senior Member Howard
DELIVERED ON:	18 December 2017
DELIVERED AT:	Brisbane
ORDERS MADE:	The application to stay a decision is refused.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where application filed for leave to appeal or appeal decision of the Tribunal – where decision was a money order in the Minor Civil Disputes Jurisdiction – where money order was in respect of a motor vehicle accident – where respondent in Minor Civil Dispute proceeding sought a stay on the money order decision pending the outcome of the appeal proceeding – whether a stay should be granted- the balance of convenience in the circumstances Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 62, s 145 Barker v Lavery (1885) 14 QBD 769 JC Scott Constructions v Mermaid Waters McBride v Sandland (No 2) (1918) 25 CLR 369 Tavern Pty Ltd (No 1) [1983] 2 Qd R 243
APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

An Adjudicator heard a dispute in its minor civil dispute (MCD) jurisdiction between Peter Callil and Samuel Kosonen. The dispute related to a claim for property damage arising from a motor vehicle accident. An Adjudicator heard the dispute and made orders that Mr Callil pay $1,720.80 to Mr Kosonen.
Mr Callil subsequently filed an application for leave to appeal the Tribunal’s decision. That application is yet to be determined.
At this stage, I must decide Mr Callil’s application seeking orders that the learned Adjudicator’s decision be stayed until the appeal proceedings have been decided.
In the application for a stay order, Mr Callil submitted only that he sought a stay because the matter was subject to appeal. Both he and Mr Kosonen subsequently had the opportunity to provide written submissions in relation to the application.
Mr Callil submits that a stay order should be made because the Adjudicator’s decision did not stipulate a timeframe for compliance and an appeal has been lodged.
Under s 145 of the QCAT Act, the Appeal Tribunal may make an order staying the operation of a decision being appealed against until the appeal is decided. The issues to be considered in deciding whether to stay an order pending appeal are settled.
A party seeking a stay order must satisfy the tribunal that the discretion to grant a stay ought be exercised in the circumstances. There must be sound reasons for suspending the rights that the successful party otherwise has to fruits of the judgment.[1] An applicant must demonstrate that he/she has an arguable ground of appeal. It is not sufficient to appeal without ground/s simply in order to avoid execution of the judgment. The balance of convenience in the circumstances must be considered. If success on appeal would be rendered nugatory were a stay not granted, that must be balanced against the expectation of the successful party to the fruits of the judgment.[2] In the case of a money order, a stay may be granted in circumstances where there is evidence that if the appeal succeeds, the respondent would not be able to repay the money.[3]
[1]McBride v Sandland (No 2) (1918) 25 CLR 369, 374.
[2]JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 1) [1983] 2 Qd R 243, 247.
[3]Barker v Lavery (1885) 14 QBD 769.
Mr Callil has not provided submissions in respect of the relevant factors.
However, the judgment Mr Callil seeks leave to appeal is a money judgment. There is no evidence to suggest that if the appeal succeeds, Mr Kosonen will be unable to repay the money. The balance of convenience lies with Mr Kosonen, as the party successful before the learned Adjudicator. Even if Mr Callil has an arguable case, I would not be persuaded that a stay order should be made.
I refuse the application for a stay order.
I also make directions listing the appeal proceeding for an oral hearing on a date to be fixed.

In the Queensland Court of Appeal, Callil appealed against a decision made by the Tribunal in a minor civil dispute. The original dispute involved a motor vehicle accident, and the Tribunal had issued a money order. Kosonen, the respondent, sought a stay of the money order pending the outcome of the appeal. The Court of Appeal had to determine whether to grant a stay of the decision pending the appeal.

The central issue before the Court was whether a stay should be granted in light of the general principles governing such requests. The Court considered the balance of convenience and the circumstances of the case. It was established that the Tribunal's decision was a money order in the minor civil disputes jurisdiction, and the appeal was in respect of that decision. Kosonen argued that a stay would be appropriate to avoid potential prejudice and the risk of the appellant Callil becoming judgment proof.

The Court of Appeal evaluated the balance of convenience and concluded that a stay was not warranted. The Court held that the general principles for granting a stay did not apply in this instance, and the respondent had not demonstrated that the balance of convenience favoured a stay. Consequently, the application to stay the decision was refused.

The final orders of the Court were that the application to stay the decision of the Tribunal was refused. The money order remained in effect, and the appeal proceeded without a stay.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established