Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Montales-Cook v Wilson [2017] NSWCATAP 2 Hearing dates: 22 November 2016 Date of orders: 22 November 2016 Decision date: 05 January 2017 Jurisdiction: Appeal Panel Before: A Britton, Principal Member Decision: The application for a stay of the decision under appeal is refused. Catchwords: PRACTICE AND PROCEDURE — stay of the decision under appeal — whether the decision under appeal would be rendered nugatory Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 Category: Procedural and other rulings Parties: Vivian Francisco Montales – Cook (Appellant) Margarita Wilson (Respondent) Representation: Appellant (in person) Respondent (in person) File Number(s): AP 16/49151 Decision under appeal Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Date of Decision: 01 November 2016 Before: S Thode, Senior Member File Number(s): GEN 16/38445 REASONS FOR DECISION 1. The appellant, Vivian Montales-Cook has requested written reasons under s 62(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) for the Appeal Panel's refusal to stay the decision made by the Consumer and Commercial Division of the NSW Civil and Administrative Tribunal (NCAT) that she pay to Margarita Wilson, the respondent to this appeal, the sum of $5525. These are the written reasons in response to Ms Montales-Cook's request. Background to decision to refuse to stay the decision under appeal 1. In late 2016, Ms Wilson lodged an application with NCAT seeking a refund of fees paid to Ms Montales-Cook for "architectural services". The fees related to an agreement between the parties which required Ms Montales-Cook to prepare plans for a granny flat to be built in the backyard of Ms Wilson's home. 2. Following a hearing on 1 November 2016, the Tribunal ordered Ms Montales-Cook to pay to Ms Wilson the sum of $5525. The Tribunal found that Ms Montales-Cook had breached an "essential term" of the agreement, namely to provide "a development application plan, a statement of Environmental Effects, Development application plans and a BASIX certificate". 3. Ms Montales-Cook lodged an appeal against that decision, and, in addition, sought a stay of that decision. The notice of appeal listed a number of grounds of appeal, including that the Tribunal had failed to provide adequate reasons for its decision and to afford procedural fairness. 4. In compliance with directions made on 10 November 2016, Ms Montales-Cook provided the Appeal Panel with detailed submissions in support of her application for a stay. At the hearing of that application, she expanded on those submissions. Power to grant a stay of the decision under appeal 1. The power to stay the operation of a decision under appeal is conferred by s 43 of the NCAT Act, which relevantly provides: 43 Effect of pending general applications and appeals … (2) A pending … appeal does not affect the operation of the decision to which the … appeal relates, or prevent the taking of action to implement the decision, unless the Tribunal makes an order staying or otherwise affecting the operation of the decision. (3) The Tribunal may make such orders (whether with or without conditions) staying or otherwise affecting the operation of a decision to which a pending … appeal relates as it considers appropriate to secure the effectiveness of the determination of the … appeal. 1. The NCAT Act does not specify the factors to be taken into account in determining whether the power to stay the operation of a decision under appeal should be exercised. In Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 (Bentran), after examining the authorities, Wright J at [9], summarised the principles applicable to deciding whether a stay of a decision under appeal should be granted (citations omitted): 1. Generally a successful party is entitled to the benefit of the decision or orders that the party has obtained at first instance, but a stay may be granted where the appellant has demonstrated an appropriate case to warrant the exercise of discretion in its favour – s 43(2) and (3) of the Act. 2. In practical effect the onus is on an applicant for a stay to make out a case that it is appropriate for the court to make such an order. 3. The mere lodgement of the notice of appeal is insufficient, of itself, to demonstrate that it is an appropriate case to warrant the granting of a stay. 4. An order staying the operation of a decision or orders will generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the appeal – s 43(3) of the Act. This is similar to, if not the same as, the considerations applied by the Courts that where there is a risk that an appeal will prove abortive if the appellant succeeds and a stay is not granted, or where unless a stay is granted an appeal will be rendered nugatory, the discretion should generally be exercised in favour of granting a stay. 5. The Tribunal may also take into account the strength or otherwise of the case of the party seeking the stay. This consideration may be particularly relevant when it is plain that an appeal, which does not require leave, has been lodged without any real prospects of success and simply in the hope of gaining a respite against immediate execution of the decision. 6. The Tribunal's power to grant a stay includes a power to make such an order subject to such conditions as the Tribunal specifies. 7. In exercising the discretion the Tribunal will also weigh the balance of convenience and the competing rights of the parties and may impose appropriate conditions so as to achieve a result that is fair to all parties. 8. Finally, the overriding principle in an application for a stay is to ask what the interests of justice require. Should a stay be granted? 1. In considering whether to grant a stay the potentially competing interests of the parties and, if relevant, the public, must be considered. As acknowledged by Ms Montales-Cook, she bears the onus of demonstrating that the balance of factors favour the granting of the stay. 2. Ms Montales-Cook contends that the appeal has strong prospects of success. Ms Wilson disagrees and asserts that the appeal is hopeless and "just another groundless delaying manoeuvre devised … to attempt to frustrate the administration of justice". For current purposes I will assume but not decide that the appeal is arguable. 3. While not a pre-condition to the exercise of the power to grant a stay, a relevant factor to the exercise of that power is whether a stay is reasonably necessary to secure the effectiveness of the appeal. Ms Montales-Cook acknowledges that the question whether the appeal will be rendered futile is a relevant factor, but has not addressed how in this case, if a stay of the decision under appeal was not granted, the appeal would be so rendered. The order the subject of the appeal is a money order. Unlike other forms of orders, such as an order to perform specified work, it could not reasonably be asserted that unless a money order is stayed an appeal will be rendered nugatory. If successful in the appeal, Ms Montales-Cook will be entitled to a money order in her favour. 4. Ms Montales-Cook has not adduced any evidence which might suggest that if the appeal is successful she is unlikely to be able to recover the amount the subject of the disputed order from Ms Wilson. Nor has she adduced any evidence which might support a finding that compliance with the order made by the Tribunal would subject her to any particular hardship. Further, she has not identified any public interest which might favour the granting of stay. 5. In my opinion the balance of factors do not favour granting a stay of the decision under appeal. The application for a stay of the decision under appeal is refused. ******** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. 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