Con Kokontis has lodged an appeal against a decision made by the Consumer and Commercial Division of the NSW Civil and Administrative Tribunal (NCAT) that he pay to home owner, James Moran the sum of $ 62,021.12 within 28 days (the decision under appeal).
In a decision made on 6 March 2017, I refused an application made by Mr Kokontis to stay the operation of the decision under appeal. Subsequently, Mr Kokontis made a request under s 62(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (the NCAT Act) for written reasons for that decision. These reasons are provided in response to that request.
[2]
Background to decision to refuse to stay the decision under appeal
The parties have been in dispute for a number of years over claims made by Mr Moran in relation to "residential building work" carried out by Mr Kokontis on behalf of Mr Moran under a contract between the parties. Mr Kokontis is a licenced plumber.
In January 2016, following an application to NCAT made by Mr Moran, the original Tribunal ordered Mr Kokontis to rectify specified building work undertaken on Mr Moran's home (the work). The Tribunal gave Mr Moran leave to renew his initiating application at any time prior to 30 November 2016 if Mr Kokontis did not fully comply with the order to perform the work.
Asserting that little of the work had been undertaken, in September 2016 Mr Moran filed a Notice to Renew Proceedings under cl 8, Sch 4 of the NCAT Act. Mr Moran sought a money order to enable other builders to complete the work.
After a hearing in which each party led expert evidence, the Tribunal found that eight of the building items claimed by Mr Moran were incomplete and/or defective. The Tribunal estimated the cost of undertaking that work to be $62,051.12 and ordered Mr Kokontis to pay that amount to Mr Moran.
[3]
The determination of the application for a stay of the decision under appeal
In a notice of appeal lodged on 22 February 2018, Mr Kokontis sought leave to appeal on the grounds that the decision under appeal was "not fair and equitable" and "against the weight of evidence". The Appeal Panel may only grant leave to appeal if satisfied, Mr Kokontis may have suffered a "substantial miscarriage of justice" because the decision was not fair and equitable and/or is against the weight of evidence: cl 12 of Schedule 4 to the NCAT Act.
The essence of the grounds of appeal is that the facts found by the Tribunal, in relation to the quality of the work and the estimated costs to rectify that work, were against the weight of evidence. In addition, Mr Kokontis asserted that Mr Moran's "main concern was to get as much monetary compensation available rather than have repaired any reasonable damage".
In an application for stay of the operation of the decision under appeal, Mr Kokontis gave these reasons for making that application :
1. "Because the appellant is confident that he will be successful in reducing the amount ordered to be paid and without a stay will not be able to obtain a refund from Mr Moran.
2. The appellant should not have to be put in a position where he would have to chase a refund or even litigate with further costs to obtain a refund of the award."
In orders made by the Appeal Panel (differently constituted) the application for a stay was listed for hearing on 6 March 2018 and the parties directed to file and serve evidence and submissions in support of their respective positions in relation to the application for a stay.
In a statutory declaration declared on 28 February 2018, Mr Kokontis declared that he was not in a position to pay the amount ordered in one lump sum. He wrote that for the past 18 months he has been building a duplex at his own home and throughout this period had been drawing on a line of credit and relying on his wife's salary to meet expenses.
In a statement dated 5 March 2018, Mr Moran stated that he and his wife are both in full-time employment, own their own home and have significant equity in their home and other investments.
In addition, Mr Moran rejected the claim made by Mr Kokontis that he would be unable to pay the amount ordered, asserting that Mr Kokontis owned several residential properties together with a "successful plumbing business".
The hearing of the application of the stay commenced at about 11:45, 15 minutes after the scheduled commencement time. The solicitor acting for Mr Kokontis had been given leave to appear by phone. A call was made to the solicitor at the commencement of the hearing and the Appeal Panel was told by the firm's receptionist that he had stepped out of his office and it was not known where he was. A message was left advising that the hearing was about to commence and requesting the solicitor to ring back. The solicitor rang back after the hearing was completed.
[4]
Power to grant a stay of the decision under appeal
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.
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.
[5]
Should a stay be granted?
Mr Kokontis bears the onus of demonstrating that this is an appropriate case to warrant the exercise of the discretion to stay the operation of the decision under appeal.
Mr Kokontis does not assert that the grounds of appeal give rise to an error of law. The appeal appears to be a challenge to the factual findings made by the Tribunal. Nonetheless, for the purpose of determining whether to exercise the power conferred by s 43 of the NCAT Act, I have assumed that the appeal is arguable.
While not a pre-condition to the exercise of the power conferred by s 43 of the NCAT Act, a relevant factor to the exercise of that power is whether a stay is reasonably necessary to secure the effectiveness of the appeal. This issue was not addressed in written submissions filed on behalf of Mr Kokontis.
In written submissions, Mr Kokontis did not address the question of whether the appeal would be rendered "useless" if, prior to its determination, he complied with the order made by the Tribunal. The order the subject of the appeal is a money order. Unlike other types of orders that can be made under the Home Building Act 1989 (NSW), such as an order to perform specified work, it could not reasonably be argued that a money order cannot be "reversed" thus rendering the appeal "useless". If Mr Kokontis were ultimately successful in the appeal, the money he was ordered to pay under the decision under appeal would be recoverable from Mr Moran. Evidence led by Mr Moran indicates that he has the capacity to repay any money received from Mr Kokontis under the orders made by the Tribunal.
The evidence led by Mr Kokontis is insufficient, in my opinion, to establish that Mr Kokontis is unable to pay the money ordered by the Tribunal. The evidence provided by Mr Kokontis does not disclose the assets held by Mr Kokontis (apart from his own home) or any business in which he has an interest; whether the bank account referred to in the statutory declaration provided in support of the application for a stay is the only account in Mr Kokontis' name or a business in which he has an interest; or what attempts, if any, he has made to borrow the money ordered by the Tribunal.
As explained in Bentran, the starting point in considering whether to exercise the power to stay the decision under appeal is that Mr Moran as the successful party is entitled to the benefit of that decision.
Apart from claiming that he is unable to pay the amount ordered by the Tribunal within 28 days, Mr Kokontis has not explained how his interests will be adversely affected unless the operation of the decision under appeal is stayed. The available evidence does not suggest that there is a real risk that Mr Moran will be unable to repay the money ordered.
While I appreciate that Mr Kokontis feels aggrieved that he is required to comply with a decision he believes is wrong and is likely to be set aside on appeal, that subjective belief does not provide a proper basis to warrant the exercise of the power to stay the decision under appeal. The available evidence does not establish that he will suffer any substantial prejudice if a stay is not granted. The initiating application has now been on foot since early 2016, and Mr Moran is entitled to benefit of the Tribunal's decision.
In my view, Mr Kokontis has not demonstrated that this is an appropriate case to warrant the exercise of the discretion conferred by s 43 of the NCAT Act.
[6]
Order
1. The application for a stay of the decision under appeal is refused.
[7]
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.
Registrar
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Decision last updated: 04 April 2018