Pfeffer v Driftwood Constructions Pty Ltd

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.
2. 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. The Pfeffers bear 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. 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.
2. 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. In the application for a stay of the decision under appeal, the Pfeffers wrote: 1. … 2. The appeal will be useless if the order is enforced pending its determination. 3. The appeal respondent is a company, not a natural person, which may cause difficulty in recovering the decision proceeds if the decision is enforced pending the appeal outcome and the appeal is successful.
3. The Pfeffers did not address in their submissions how the appeal would be rendered "useless" if, prior to the determination of the appeal, they complied with the order made by the Tribunal. . It would appear that the basis for that assertion is the Pfeffers' belief that it is more difficult to recover money payable under an order of a court or tribunal, from a corporation, as it would be to recover the same from an individual.
4. Even if the proposition advanced by the Pfeffers is accepted, that it is more difficult to recover money from a corporation that an individual, no evidence has been provided which might support a finding that the financial position of Driftwood is such that if the appeal is successful, there is a real risk that Driftwood might be unable to comply with an order to repay to the Pfeffers the money paid in compliance with the decision under appeal, or such other order as may be made by the Appeal Panel.
5. 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 an order of this type cannot be "reversed" thus rendering the appeal "useless".
6. As explained in Bentran, the starting point in considering whether to exercise the power to stay the decision under appeal is that Driftwood as the successful party is entitled to the benefit of that decision. Apart from asserting that the appeal will be rendered futile unless the stay is granted, the Pfeffers have not explained how their interests will be adversely affected unless the operation of the decision under appeal is stayed. While I appreciate that the Pfeffers feel aggrieved that they are required to comply with a decision they believe 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. In my view the Pfeffers have not demonstrated that this is an appropriate case to warrant the exercise of the discretion conferred by s 43 of the NCAT Act.
7. 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. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 June 2017