QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Lifestyle Resorts Group Pty Ltd v Geoff Burr Painting Pty Ltd & Anor [2022] QCATA 109	
PARTIES:	LIFESTYLE RESORTS GROUP PTY LTD 
(applicant)	
	v 	
	GEOFF BURR PAINTING PTY LTD 
(first respondent)
HAYBUILD GROUP PTY LTD 
(second respondent)	
APPLICATION NO/S:	APL295-21	
MATTER TYPE:	Appeals	
DELIVERED ON:	14 July 2022	
HEARING DATE:	On the papers	
HEARD AT:	Brisbane	
DECISION OF:	Member Lumb	
ORDERS:	1.	The Application to stay a decision filed on 5 November 2021 is dismissed.	
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where tribunal below made order for payment of money in a minor civil dispute matter – where stay of order is sought pending final determination of application for leave to appeal or appeal – whether applicant has an arguable case – whether the applicant will suffer material detriment if stay refused

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s 145

400 George Street (Qld) Pty Limited & Ors v BG International Limited [2010] QCA 245 
Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570
Brett & Anor v Manson t/as Manson Homes [2020] QCATA 122
Cook's Construction Pty Ltd v Stork Food Systems Aust Pty Ltd [2008] QCA 322
La Macchia v Department of Housing and Public Works [2015] QCATA 143 
Pivavarova v Michelsen [2018] QCATA 1
Tripple A Pty Limited v WIN Television Qld Pty Ltd [2018] QCA 246 
	
APPEARANCES:	This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).	
REASONS FOR DECISION
Introduction
[1]	This is an Application to stay a decision filed by the applicant (Lifestyle Resorts) on 5 November 2021 (the Stay Application).  The Stay Application is brought in an appeal matter commenced by an Application for leave to appeal or appeal filed by Lifestyle Resorts also on 5 November 2021 (the Appeal Application).  There are two respondents to both applications.  The first respondent (Burr Painting) and the second respondent (Haybuild) were the applicants in an Application for minor civil dispute filed in the Tribunal on 16 June 2021 (the MCD Application).  Lifestyle Resorts was the respondent to the MCD Application.
[2]	The hearing of the MCD Application took place on 6 October 2021.  On that date, the Tribunal (constituted by an Adjudicator) ordered Lifestyle Resorts to pay to Burr Painting the sum of $10,866.00 within a period of 14 days (the Decision).
[3]	By the Appeal Application, Lifestyle Resorts seeks leave to appeal the Decision.
[4]	By the Stay Application, Lifestyle Resorts seeks to stay the Decision until the Appeal Application is finally decided.
The principles for the grant of a stay
[5]	Subsection 145(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act) provides that the Tribunal may make an order staying the operation of the decision being appealed against until the appeal is finally decided.
[6]	In La Macchia v Department of Housing and Public Works, Carmody J set out the following relevant principles to be applied in deciding an application for a stay under s 145(2):
[7]	A successful party is entitled to the fruits of its litigation. The orders of the original decision-maker are intended to be final, and not merely provisional subject to the applicant initiating an appeal. This is particularly the case where the applicant requires leave to appeal, and is not entitled to appeal as of right. Accordingly, the applicant must furnish compelling reasons before the Appeal Tribunal will grant a stay of an original decision.
[8]	An application to stay the decision of an original decision-maker requires the Appeal Tribunal to be satisfied that: (a) the applicant possesses an arguable case; (b) the applicant will suffer some kind of harm, detriment, prejudice, injury, damage or other disadvantage if the stay is not granted; and (c) the balance of convenience favours granting the stay of the decision. 
The failure to establish any one of these elements should result in the refusal of the application to stay the decision.
[7]	Further, where the prospects on appeal are arguable but not overwhelmingly strong, attention should be directed to whether the appeal might be rendered nugatory by a refusal of a stay and whether the applicant would be irremediably prejudiced if the stay were refused and the appeal ultimately successful.
[8]	I will address in turn each of the three matters identified in La Macchia.
Does Lifestyle Resorts have an arguable case?
[9]	By its outline of argument filed in support of the Stay Application, Lifestyle Resorts contends that its appeal has good prospects.
[10]	An appeal against a decision of the Tribunal in a proceeding for a minor civil dispute may be made only if the party has obtained the Appeal Tribunal’s leave to appeal.
[11]	By its outline of argument filed in support of the Appeal Application, Lifestyle Resorts identifies seven grounds of appeal in respect of which it is contended the Adjudicator erred by finding:
1.	There was not a fixed priced contract between [Lifestyle Resorts] and [Haybuild];
2.	[Haybuild] was nothing more than a project manager;
3.	[Haybuild] was an agent for [Lifestyle Resorts];
4.	[Haybuild] entered into contracts on behalf of, and at the direction of, [Lifestyle Resorts];
5.	The final quote of [Burr Painting] was approved by [Lifestyle Resorts];
6.	[Lifestyle Resorts] was a disclosed principal of [Haybuild]; and
7.	[Lifestyle Resorts] was liable to [Burr Painting].
[12]	The amount ordered to be paid to Burr Painting related to painting works performed by it on a property development (the project) situated at Morningside in the State of Queensland.  There is no dispute that the works were performed, or as to the quantum of the amount claimed by Burr Painting.  Lifestyle Resorts carried out the project.  Haybuild engaged Burr Painting to carry out the painting works.  Lifestyle Resorts engaged Haybuild in relation to the project, with the nature of the services provided, and the contractual relationship between those two parties, being the subject of dispute before the Adjudicator.
[13]	With respect to the arguments raised by Lifestyle Resorts on the Appeal Application, I consider that the central issue is whether Burr Painting was engaged by Haybuild in its capacity as agent for Lifestyle Resorts or solely on Haybuild’s own behalf.
[14]	The Adjudicator was presented with two starkly different versions of the contractual relationship between Lifestyle Resorts and Haybuild.  In essence, Lifestyle Resorts contended that there was a comprehensive written fixed-price building contract pursuant to which Haybuild was engaged as builder.  Haybuild contended that there was an oral agreement that Haybuild would act as project manager on the development and be paid a monthly salary of $6,000.00.
[15]	The Adjudicator preferred the evidence of Mr Hay, a director of Haybuild.  The Adjudicator did so primarily by reference to the course of dealing between Lifestyle Resorts and Haybuild over the course of the project.  The course of dealing referred to by the Adjudicator included the following aspects.
[16]	First, even on what the Adjudicator found to be the case of Lifestyle Resorts, between 25% and 50% of the invoices issued by contractors with respect to the project were paid to Haybuild with the balance paid to the contractors directly.
[17]	Second, Haybuild was paid a monthly salary of $6,000.00 on at least 11 occasions.
[18]	Third, Lifestyle Resorts was disclosed to Burr Painting as the principal and Burr Painting’s quote was approved by Lifestyle Resorts.
[19]	Lifestyle Resorts points to the fact that the Adjudicator accepted that Mr Hay had signed a four page document and that there were “other pages” which had not been signed but were “included in the contract by way of reference”.  Lifestyle Resorts also relies upon the principle that post-contractual conduct is not admissible on the question of what a contract means as distinct from the question of whether it was formed.
[20]	In relation to post-contract conduct, the general principle is that “it is not legitimate to use as an aid in the construction of [a] contract anything which the parties said or did after it was made”.  However, a distinction is sometimes drawn between proof of a term and the meaning of a term and evidence of subsequent conduct may be admissible on the former question, particularly where the contract is not wholly in writing, but not the latter.
[21]	Lifestyle Resorts submits that the Adjudicator, whilst accepting the existence of the fixed-price contract, sought to construe the terms of that agreement with regard to an alleged pre-contractual oral agreement, the terms of which were contradicted by the (unambiguous) terms of the written contract.  This approach was said to be contrary to law.  While I do not express a concluded view as to this submission, I observe that on one view of the reasons the Adjudicator found that the only agreement governing the relationship between Lifestyle Resorts and Haybuild was the oral agreement identified by Mr Hay.  That is, it is arguable that the Adjudicator relied on the post-contractual conduct (course of dealing) for the purpose of identifying the agreement that was formed between Lifestyle Resorts and Haybuild (rather than for the purpose of construing the terms of such agreement).
[22]	However, I consider that Lifestyle Resorts has raised an arguable case, particularly in circumstances where the Adjudicator’s reasons do not appear to analyse the relationship, if any, between the two asserted agreements including, for example, whether the oral agreement was entered into in substitution for the agreement comprising written four page document or whether the oral agreement varied the written agreement in some, and if so what, manner.
[23]	In light of this finding, it is unnecessary to address the balance of the grounds raised by Lifestyle Resorts, save to observe that the submissions made in relation to the issue of agency turn, in part, on the issue of whether Haybuild was acting as project manager or as builder on the project, as well as other factual issues including whether Burr Painting’s final quote was approved by Lifestyle Resorts.  These remain to be determined on the Appeal Application.
[24]	In my view, Lifestyle Resorts has demonstrated that it possesses an arguable (but not overwhelmingly strong) case.
Will Lifestyle Resorts suffer some kind of detriment etc if the stay is not granted?
[25]	Lifestyle Resorts submits that it is “reasonably concerned” that Burr Painting is “impecunious” and should payment be made and the appeal ultimately allowed, Lifestyle Resorts will be unable to recover the money paid to Burr Painting.  Lifestyle Resorts also submits, seemingly on this basis, that there is a risk that the appeal may be rendered nugatory.
[26]	In my view, Lifestyle Resorts has failed to adduce any cogent evidence to support its concern.  The correspondence relied upon does not support the contention.  In its solicitors’ letter dated 26 October 2021, Lifestyle Resorts asserted a concern that Burr Painting would be unable to repay the judgment amount if paid to it.  In an email response sent on 16 November 2021, Burr Painting stated, amongst other matters, “It is your client’s choice to appeal this decision if he wins the appeal he can request for the money be [sic] returned to him.”
[27]	Lifestyle Resorts has failed to establish that there is reasonable prospect that the judgment amount could not be repaid (or would not otherwise be recoverable) in the event that leave to appeal was granted and the appeal was allowed.  Consequently, Lifestyle Resorts has failed to establish that it will suffer some kind of harm, detriment, prejudice, injury, damage or other disadvantage if the stay is not granted.
[28]	While I consider this sufficient to dispose of the application, I will address the issue of balance of convenience.
Balance of convenience
[29]	Lifestyle Resorts submits that given that it has offered security (in the form of payment into its solicitors’ trust account of the whole of the judgment amount with an irrevocable undertaking to pay that amount to Burr Painting should the appeal be unsuccessful) there is “little detriment” to Burr Painting should the stay be granted.
[30]	While I consider this to be a factor which would be relevant to the exercise of the Tribunal’s discretion to order a stay, in the present case it would not have been sufficient to displace the prima facie position that the successful party is entitled to the fruits of its litigation.  Additionally, I observe that there was no offer to make payment of interest to Burr Painting on the loss of use of the money from the date that the payment was originally due pursuant to the Decision until the date that the Appeal Application is finally determined (in the event that the Application were to be unsuccessful).
Conclusion
[31]	For the reasons set out above, the Application to stay a decision filed on 5 November 2021 is dismissed.