Kessly v Bold Moves Pty Ltd [2016] NSWCATAP 263

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kessly v Bold Moves Pty Ltd [2016] NSWCATAP 263 Hearing dates: 15 November 2016 Date of orders: 02 December 2016 Decision date: 15 November 2016 Jurisdiction: Appeal Panel Before: S Westgarth, Deputy President Decision: Application for a stay is refused Catchwords: Stay application Legislation Cited: Civil and Administrative Tribunal Act 2013 Cases Cited: Nil Texts Cited: Nil Category: Principal judgment Parties: David Kessly (Appellant) Bold Moves Pty Ltd (Respondent) Representation: Counsel: Not applicable

Solicitors: Not applicable File Number(s): AP 16/49095 Publication restriction: Unrestricted Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: Not applicable Date of Decision: 17 October 2016 Before: D Goldstein, Senior Member File Number(s): HB 16/36405

reasons for decision 1. This decision concerns an application for a stay on the operation of an order made by the Tribunal pending the outcome of an appeal. This is a written statement of the reasons which were given orally and given following a request under s 62 of the Civil and Administrative Tribunal Act 2013 (NCAT Act). These reasons do not record the directions made at the call over of the appeal and only records the decision concerning the stay application. 2. There are a number of principles which I am obliged to take into account when I consider a stay application and in this particular case I record that the Member made an order that Mr Kessly pay approximately $4,000.00 dollars to Bold Moves. That has not been paid. The Member also dismissed a loss of rent claim which was part of a separate application. 3. The principles that I am obliged to take into account are these: Firstly a party who has been successful (in this case Bold Moves) is entitled to the benefit of the order that that party has obtained. However, a stay can be given where the appellant (in this case Mr Kessly) can demonstrate that there is an appropriate case to warrant the exercise of a discretion in favour of Mr Kessly. In other words, the general rule is no stay, but I can order a stay if the circumstances require it. The onus (that is the obligation to make out a case that a stay should be given) is on the person who wants a stay, in this case Mr Kessly. 4. In this particular case Mr Kessly's argument was that no weight was given in relation to certain evidence at the first hearing and in particular no weight was given to requests for meetings to be conducted. There was some evidence that meetings were requested and Bold Moves did not attend. It is not necessary for me to say whether or not that is true, but that is a summation of what Mr Kessly's argument is in favour of the stay. 5. The third factor is that just because an appeal has been lodged does not mean that a stay must be given automatically. I still have to consider the principles which I am dealing with right now. 6. The fourth factor is that the applicant for a stay (Mr Kessly) must demonstrate that the appeal raises serious issues for the determination of the Appeal Panel. In other words, the strength or weakness of the appeal needs to be taken into account. In this case that is very difficult because I do not have the benefit of any written reasons of the Member. So I have to assume in favour of Mr Kessly that the appeal has some reasonable basis for success and it would be unsafe for me to assume that the appeal is a weak appeal or an appeal that has no prospects for success. 7. The next thing is that an order staying the operation of an existing order is generally appropriate where it is necessary to protect the appeal. In other words unless there is a stay the appeal would prove to be a pointless exercise and as I indicated earlier in discussing this with you both, a classic case is where a tenant's tenancy is terminated and the tenant appeals. Unless the termination of the tenancy order is stayed then the appeal runs the risk of being pointless because if the tenant were successful and was still required to leave the premises in the meantime, then having won the appeal, the tenant would still be ousted. There would be no point in the appeal and it would be a hollow victory. Where there is a money order, that is not the case generally speaking because money can be ordered by the Appeal Panel to be repaid. In other words if Mr Kessly pays the money and is successful on the appeal, the Appeal Panel can order that the money be repaid by Bold Moves to Mr Kessly. 8. The next principle is that that I have to consider the balance of convenience and the competing rights of the parties. That is a difficult exercise in the sense that on the one hand Bold Moves has been successful and is entitled to the money. There is no evidence that Bold Moves is in financial difficulties or desperately needs the money but on the other hand it is entitled to the money. On the other hand Mr Kessly has filed an appeal and if he is successful there is a possibility that any money paid will be ordered to be repaid. Further, I am somewhat concerned about the way Mr Kessly has prepared the case in the sense that there is no evidence of how much it would cost to fix the windows assuming that they are not in proper condition (that proposition is contested by Mr Goodfrey who disputes the windows are defective or are the wrong size or wrongly installed). Assuming against Mr Goodfrey that there is some work to be done to the windows, no evidence is before me as to the amount that it would cost to fix the windows and it might be that it is a small amount of money in which case it would be unfair to withhold from Bold Moves the whole of the $4,200.00 just to secure damages in favour of Mr Kessly for a small amount, say $500.00 or $1,000.00. The point is we do not have that evidence which could have been made available and it is not available. 9. Ultimately the final principle I have to take into account is what the interest of justice require, which is another way of saying that I have to consider the whole amalgam of all of these issues and decide what is the appropriate course. In my view the appropriate course in this case is that there should be no stay and the application for the stay is refused.