Cumming v Thiel [2026] QCATA 47

[3] On 3 February 2026 the Applicant commenced an appeal against the original decision, and applied for a stay of the original decision.

[4] On 5 February 2026 the Appeal Tribunal made an interim order suspending the operation of the warrant of possession, pending determination of the application to stay the original decision.

[5] On 13 February 2026 the Appeal Tribunal refused to stay the operation of the original decision, and re-issued the warrant of possession to take effect on 16 February 2026 ("the stay refusal").

[6] On 14 February 2026 the Applicant requested written reasons for the stay refusal. These now are those reasons.

[7] The general rule is there should be no stay. As was observed by Keane JA (as his Honour then was) in Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd:

....it will not be appropriate to grant a stay unless a sufficient basis is shown to outweigh the considerations that judgments of the Trial Division should not be treated as merely provisional, and that a successful party in litigation is entitled to the fruits of its judgment. Generally speaking, courts should not be disposed to delay the enforcement of court orders.[1]

[8] An onus rests upon an applicant for a stay to persuade the Court that it is appropriate to grant a stay. In Clayton v Ebborn it was observed:

The applicable principles are well established. It is incumbent on the applicant to establish that this is an appropriate case for a stay. The factors which normally weigh upon the exercise of the discretion are:

(a) whether there is an arguable case on the appeal, carrying out a preliminary assessment of the applicants' prospects of success;

(b) whether a refusal of the stay would render the appear right nugatory;

(c) any prejudice to the applicants and competing prejudice to the respondent;

(d) the entitlement of the successful party in litigation to the fruits of its judgment; and

(e) that orders might ultimately be made, and whether a stay is required to ensure that those orders are fully effective.[2]

[9] The information submitted by the Applicant to the Appeal Tribunal in support of the requested stay is wholly insufficient to discharge the onus to show that this is an appropriate case for a stay.

[10] The Application to stay the decision under appeal is refused.

[1] [2008] QCA 322; [2008] 2 Qd R 453, [12].

[2] [2025] QCA 199, [20].