- Unreported Judgment
COURT OF APPEAL
Appeal No 12768 of 2015
DC No 1244 of 2015
JAMES SYDNEY UPTONApplicant
WESTPAC BANKING CORPORATIONRespondent
WEDNESDAY, 9 MARCH 2016
FRASER JA: On 10 November 2015, a judge of the District Court gave summary judgment against the applicant for about $617,000 in respect of a larger part of the respondent’s claim. The judge also ordered that the applicant’s counterclaim against the respondent be struck out, but with liberty to re-plead the counterclaim in accordance with the judge’s reasons. On 10 December 2015, the same judge refused the applicant’s application to stay the summary judgment pending a trial of the applicant’s counterclaim against the respondent for damages for breach of the duty in s 85 of the Property Law Act 1974. The applicant has appealed against the refusal of his application for a stay pending the trial of the counterclaim.
What is presently before me is the applicant’s application for a stay of the summary judgment given on 10 November 2015 until the determination of the appeal against the refusal of the application for a stay pending trial of the counterclaim. The respondent submitted that r 761 of the Uniform Civil Procedure Rules 1999 does not empower the Court to grant a stay in these circumstances. That appears to be so on the footing that the rule empowers the Court to order a stay only of a decision which is itself subject to an appeal (see Perovich v ASIC  QCA 456 at 4) but the Court also has an inherent power to grant a stay which is not confined in the same way (see Cox v Mosman  St R Qd 210).
An analogous example of the exercise of that power may be found in a case cited in Cox v Mosman, Wilson and Church (No 2), in which a stay was granted on the execution of a judgment other than the judgment the subject of the appeal, the stay being necessary to prevent the appeal from being nugatory. As to the appropriate test in this application, in Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd  2 Qd R 453, Justice Keane referred to the following considerations:
“Judgments are not to be treated as provisional only; a successful party is entitled to the fruits of its judgment; courts are not disposed to delay the enforcement of court orders; the fundamental justification for delaying enforcement is to ensure that orders which ultimately might be made are fully effective; and the question ultimately is whether the applicant for a stay would be prejudiced irretrievably if the stay were not granted and the appeal ultimately upheld.”
Justice Keane also observed that the prospects of success may weigh significantly in the balance of the relevant considerations.
In Cook’s Construction, the reference to a judgment not being treated as provisional and to a successful party being entitled to the fruits of its judgment was made in the context of a stay pending appeal against a decision in the Trial Division after a trial. Here what is in issue is an interlocutory decision refusing a stay pending a trial of a counterclaim. In my view, a consideration of more importance in this case is whether a stay pending appeal is required in order to ensure that the orders which ultimately might be made in the appeal will be effective. The applicant argued that unless a stay were granted he would be made bankrupt upon the application of the respondent, with the inevitable result that his appeal would not proceed.
There have been cases in which similar submissions have not been given great weight, for example on the footing that a receiver or a liquidator could prosecute an appeal if it were decided that it had worthwhile prospects, but it has been held that the relevance of such situations may “vary from case to case”. In Cook’s Construction, Justice Keane observed that it was not suggested that the receiver or liquidator would not make an assessment that the appeal had worthwhile prospects so that it might then be pursued. This case is different insofar as it involves an apparently imminent prospect of personal bankruptcy and where it appears that there would not be funds available to a trustee in bankruptcy to continue an appeal which the applicant is personally prepared to prosecute. In Condo v Dang  QCA 64, Holmes JA, as the Chief Justice then was, considered it to be a “…powerful consideration in the balance of convenience that bankruptcy is likely to diminish the prospects of the appeal proceeding.” So it is here. That consideration strongly favours the grant of a stay.
The case for a stay seems particularly strong in these circumstances where I can see no evidence or submission to contradict the applicant’s submission that the grant of a stay pending appeal would not cause any prejudice to the respondent.
The ground upon which the respondent ultimately rested in opposing the stay was that the applicant had not established that the exercise of the primary judge’s discretion miscarried in any way. The applicant does not need to establish so much in this application.
This is not a case in which there was an application to strike out the appeal on the ground that it has no prospect of success. The prospects of success in this case require an assessment of the evidence which was before the primary judge, or which might be regarded as having been before the primary judge having regard to the primary judge’s reliance, in the reasons for judgment for granting summary judgment, upon statements for which there was no evidence read at the application for a stay.
I have examined that material. It does not seem to me to be feasible in this application to make an accurate assessment of the prospects. The impression I have is that the prospects are not strong. But, I am not prepared to say that the appeal is so hopeless that, in circumstances in which refusing a stay would likely render the appeal nugatory and where there does not appear to be any significant prejudice to the respondent in allowing the appeal to proceed, the stay should be refused. In these circumstances it seems to me that the appropriate order is to stay the execution of the judgment pending appeal, but on the clear understanding that unless that appeal is prosecuted quickly and efficiently it would be open to the respondent to apply to terminate the stay.
I order that upon the undertaking of the appellant to prosecute the appeal with due diligence, there be a stay of the enforcement of the judgment of the District Court delivered on 10 November 2015 pending the determination of this appeal.
The costs of this application are reserved.
 See Challenge Charter Pty Ltd v Curtain Bros (Qld) Pty Ltd, which was quoted with approval in Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd at 16.
- Published Case Name:
Upton v Westpac Banking Corporation
- Shortened Case Name:
Upton v Westpac Banking Corporation
 QCA 55
09 Mar 2016
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