West v Blackgrove[2012] QCA 214

COURT OF APPEAL

FRASER JA

Appeal No 5629 of 2012

SC No 8861 of 2009

ROBERT JOHN WEST & ORSApplicants

v

BETTY JUNE BLACKGROVE and ANORRespondents

BRISBANE 

DATE 22/08/2012

JUDGMENT

FRASER JA:  This is an application by Mr Robert John West, the first appellant, for a stay of orders which were made in the Trial Division which in substance require him to pay two amounts of $100,000 together with costs which have been assessed at a little over $75,000 in favour of one or other of the respondents to the appeal.

Mr West submits that, he having appealed, the litigation has not been finalised and it is not appropriate that he pay the money, particularly the costs.  He does not seem, from his submissions, to have a particular objection to paying two amounts of $100,000 into an interest bearing fund pending resolution of the appeal, although he would prefer not to, but he does oppose an order that he pay the amount of the costs into that fund.

The suggestion that the litigation has not been finalised does not reflect the appropriate test for consideration of this application.  In Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453 at paragraph 12, Keane JA explained the test in a way which I think now commands the general assent of the Court of Appeal. His Honour said that, "…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 to litigation is entitled to the fruits of its judgment.  Generally speaking, courts should not be disposed to delay the enforcement of court orders.  The fundamental justification for staying judicial orders pending appeal is to ensure that the orders which might ultimately be made by the courts are fully effective:  the power to grant a stay should not be exercised merely because immediate compliance with orders of the court is inconvenient for the party which has been unsuccessful in the litigation."

However, this is a case in which a stay, or at least a stay on terms, is appropriate since Mr West has sworn an affidavit in which he states that both respondents are pensioners and would have no way of repaying the money to the appellants if the appeal were to succeed. On the other hand, it is pointed out by Mr Cameron for the respondents that there is evidence of considerable antipathy by the appellant towards the respondents and that, if the money remains where it is, it will be under the sole control of the appellant.

There is no real evidence to suggest that the appellant would dispose of the money in a way to make sure that it was not amenable to being paid to the respondents in the event that the appellant loses his appeal.  But the onus is on him to make out a good case for a stay, and justice will be properly done by acceding to the proposal, which was articulated by Mr West himself, that both the two funds of $100,000 and the amount of costs which have been assessed are paid into an interest-bearing deposit account which is under the joint control of the appellant and a representative of the respondents.  So I am disposed to make that order.

…

HIS HONOUR:  I order that paragraphs 12 and 15 of the affidavit of Robert John West filed on the 6th of August 2012 be redacted from that affidavit by covering those paragraphs by tape or other means.

…

HIS HONOUR:  The respondents applied for an order for costs in their favour or, alternatively, for an order that the costs be reserved. In favour of making costs in the respondent's favour is that a letter was written by the solicitors for the respondents on the 17th of August proposing that the $200,000 be paid into Court pending finalisation of the appeal, and similarly for the amount of the assessed costs, on the footing that the application for a stay be dismissed with each party bearing its own costs.  However, that is not the order that I have made. The offer did not recognise the rather obvious deficiency that the sum of $200,000 in Court would accrue virtually no interest pending the finalisation of the appeal.  Furthermore, there was quite a good case for a stay made in the affidavit filed by the appellant.

I order that the costs of the application for a stay be reserved.