Appeal from NCAT or CTTT Decision – Stay May be Granted Until Appeal Heard – No Right to Stay of Order pending Appeal

19/05/2015

Unfortunately in our experience at Watson and Watson it is more common now to have an Appeal lodged against a Decision by a Tribunal Member of  NSW Civil and Administrative Tribunal (NCAT) or its predecessor Consumer Trader and Tenancy Tribunal (CTTT) in exercising issues relating to Building and Construction disputes.

This paper only deals with an Appellant from a decision of NCAT or CTTT to obtain a stay of the Judgment against which the Appeal is lodged pending the Hearing of the Appeal.

Strict time limits apply to the time to appeal.  Care should be taken to consider the process.

The matters that are considered when a party makes Application for a Stay to the Appeal Panel are similar to the principle’s applied in other jurisdictions. 

The principles under which a party who seeks to appeal a decision and order of the Tribunal (the Appellant) may obtain a stay are referred to in the 2014 case of Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37.

In Bentran’s case the Appeal Tribunal confirm the lodgment of an Appeal does not affect the operation of the decision of the Tribunal from which the Appeal was made at first instance.  Accordingly, the Order remains enforceable unless one obtains a Stay or Order that the decision does not have to be complied with pending hearing of the Appeal.

In Bentran’s case the Appeal Panel confirmed that the Appeal Panel has a right to stay the operation of the original decision pending the determination of the Appeal.

The Appeal Panel in Bentran’s case reviewed the fundamental principles and the cases supporting those principle’s that apply in relation to an Application for the Stay to be granted.  Those principle’s are:

(a)          Generally a successful party is entitled to the benefit of the decision or Orders that a party has obtained at first instance.

(b)           The onus is on the Applicant for a Stay to make out a case that it is appropriate for the Court or Tribunal to make such an Order.

(c)           The mere lodgment of a Notice of Appeal is insufficient of itself to demonstrate that  it is an appropriate case to warrant the granting of a stay.

(d)           An order staying the operation of a decision would generally be appropriate where such an order is reasonably necessary to secure the effectiveness of the Appeal and/or unless the stay is granted an Appeal will be rendered nugatory.

(e)           The Tribunal may take into account the strengths or otherwise of the case of the party seeking a Stay.

(f)           The Tribunal’s power to grant a Stay includes a power to make such an order subject to conditions as the Tribunal specifies.

(g)           In exercising the discretion the Tribunal will weigh up the balance of convenience and competing rights of the parties.  The overriding principle in an Application for a Stay is to ask what the interest of justice requires.

If the Appellant (who was ordered to make payment by the Primary Tribunal) wishes to obtain a Stay of the Judgment then evidence as to the matters referred to in Bentran’s case referred to above is required at the time of the hearing of the Application for a Stay.  Often the Appeal Panel will grant a Stay following the lodging of the Appeal on the basis of the material provided in the Appeal.  However the Stay can be reconsidered at any time and a Respondent (the entity to receive the funds usually) to the Appeal can make an Application that the Stay be vacated when the matter is next before the Appeal Panel.

The issue or question referred to paragraph (d) above usually relates to a consideration of whether a claimant who pays a Judgment amount and is successful on Appeal, will be able to recover from the person to whom it was paid.  If the Appellant can establish that the payment if made will likely be unrecoverable then this is a significant factor taken into consideration in relation to the Application for the Appeal. 

If you are a party to an Appeal there are many considerations as to whether you would consent to a Stay or oppose a Stay depending upon many commercial matters in addition to your legal rights and prospects of obtaining a Stay.  At all times we recommend that consideration be given to the costs/benefit of proceeding with a case, an Appeal and various interlocutory matters within the Appeal. 

If you have been unsuccessful in a case we can advise you as to your Appeal prospects, however time is of the essences.  If you are met with an Appeal we can advise you in relation to your prospects.  Please telephone Richard Watson if you wish to consider your decision and prospects.