Paul Graham Andrews v Jeffrey Forrest
[1996] QDC 59
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Paul Graham Andrews v Jeffrey Forrest[1996] QDC 59
- Add to List
Paul Graham Andrews v Jeffrey Forrest[1996] QDC 59
Paul Graham Andrews v Jeffrey Forrest[1996] QDC 59
DISTRICT COURT | Plaint No 6 of 1996 |
CIVIL JURISDICTION
JUDGE DODDS
PAUL GRAHAM ANDREWS | Plaintiff |
and
JEFFREY FORREST | Defendant |
MAROOCHYDORE
DATE 15/03/96
JUDGMENT
HIS HONOUR: This is an application by J R and J M Forrest (Forrests), for a stay of execution of a judgment in the District Court pending the determination of another action in the District Court.
By Magistrates Court Plaint 269/95 P G Andrews (Andrews) claimed $13,173 from Forrests for work Andrews had done for Forrests as an electrician.
These proceedings were transferred to the Queensland Building Tribunal.
On 21 November 1995, after hearing counsel for both parties, a consent “determination” was made by the Tribunal that Forests wold pay Andrews $15,000.
On 9 January 1996 that consent determination of the Tribunal was registered in the District Court. Consequently,
- (a)“The determination has for the purposes of enforcement the same force and effect and;
- (b)proceedings may be taken on the determination; and---
- (d)the District Court has the same control over the enforcement of the determination;
as if the determination had been originally given as a judgment of the District Court and entered on the day of registration.”; section 91 Queensland Building Services Authority Act 1991.
On 6 December 1994 by plaint 6/94, Andrews commenced an action against Forrests in the District Court Maroochydore for $110,000 being money loaned by Andrews to Forrests on 31 May 1993 - $100,000 and interest due, according to the terms of the loan - $10,000.
On 27 October 1995 Forrests filed an entry of appearance and defence and counterclaim in the action commenced by plaint 6/94 admitting the loan and agreement to pay interest, but asserting that on or about 19 November 1993, the parties agreed that the money lent would be applied to satisfying liability in Andrews to pay for building work, namely the construction of two dwellings which Forrests had constructed or were in the process of constructing of Andrews. As the plea put it, “the plaintiff and the defendant orally agreed that the loan of $100,000 would be sufficient to pay for the completion of the building works under both the house contract and the duplex contract”.
The entry of appearance and defence and counterclaim went on to assert nevertheless that Andrews still owed $12,800.50 to Forrests for the building work and counterclaimed for that amount. It also in the alternative, claimed a set off. It claimed that if the loan had not been discharged, as earlier claimed, Forrests were entitled to a set off of so much of $112,800.50 ($100,000 plus $12,800) due and owing to them for the building work against any sum owing under the loan agreement.
The applicant submitted I had jurisdiction to stay execution on the judgment.
There is limited reference in the District Court Act and Rules to staying execution of a judgment. See, for instance, Rules 302, 153, 162.
The applicant submitted that section 67 of the District Courts Act, (the Act) provided a general jurisdiction to stay execution of a judgment in the District Court.
Section 67 confers on a District Court Judge, “the power and authorities” of a Supreme Court Judge including a power to “stay proceedings” for the purposes of exercising the jurisdiction conferred by Part V of the Act, or in any proceedings in which jurisdiction is conferred under Part V of the Act.
Unless jurisdiction is conferred on the Court under Part V of the Act, the “power and authorities” referred to in section 67 do not exist; Star-tune Pty Ltd v Ultra Tune Systems (Aust) Pty Ltd 1991 1 QR 192, Matelot Holdings Pty Ltd v Gold Coast City Council 1993 2 QR 168.
I am not persuaded that section 67 of the District Court Act provides me with the power urged. In no sense, in my view, is a determination of the Building Services Tribunal, which by virtue of the provisions of the Queensland Building Services Authority Act 1991 has been registered in the District Court and thus is, “as if the determination had been originally given as a judgment of the District Court”, an exercise of jurisdiction conferred by Part V of the Act or proceedings in which jurisdiction is conferred by Part V of the Act.
It was submitted that Rule 4 of the District Court Rules provided jurisdiction to grant a stay by bringing into operation the Rules of the Supreme Court.
It seems to me that Rule 4 does not apply to a determination of a Tribunal such as the Queensland Building Services Tribunal registered in the District Court. The Rule applies in, “the course of proceedings of a type which may be heard and determined in a District Court”. Because the Queensland Building Service Authority Act provides that a determination of the Tribunal upon registration is to have the incidents of a judgment of the District Court for the purposes of satisfying it, that does not characterise it as a proceeding of a type which may be heard and determined in a District Court.
It was submitted I had an inherent jurisdiction to grant a stay.
The District Court has an inherent jurisdiction to control its process. “The power of each Court over its own process is unlimited; it is a power incident to all Courts inferior as well as superior; were it not so the Court would be obliged to sit still and see its own process abused for the purpose of injustice. The exercise of the power is certainly a matter for the most careful discretion”; per Alderson B Cosker v Tempest 1841 7 M & W 501 503-4 151 ER 805-6.
In Stevens v Trewin and Van Den Broek 1968 QR 411 at 417, the Full Court of Queensland considered there was ample authority that a District Court had the power to grant a stay of an action in that Court where a dispute central to the action was referred to arbitration.
Counsel for the applicant referred me to decisions of other Courts to the effect an applicant must show exceptional or special circumstances for a stay to be granted; J C Scott Constructions v Mermaid Waters Tavern Pty Ltd 1983 2 QR 243; Criminal Justice Commission v Nationwide News Pty Ltd and King, Appeal number 27 of 1994 Court of Appeal Judgment 21/01/94. He also referred me to other cases which he submitted posed a more lenient test such as Alexander v Cambridge Credit Corp Ltd 1985 2 NSW LR 685 at 693; re Browbank and Miller ex parte Loniplus Pty Ltd 1985 12 FCR 254 in which reference was made to Alexander v Cambridge Credit Corp Ltd; Sanwa Home Australia v Eamon Pty Ltd and Others, Court of Appeal appeal number 690 of 1991 Court of Appeal Judgment 31.1.92. He submitted that all that was required was it be shown by the applicant that it was an appropriate case to warrant the exercise of a discretion to order a stay, that the balance of convenience lay in favour of granting the stay.
However the matter is put, I am inclined to think that an applicant seeking a stay in a matter such as this must show there exists such circumstances as justify staying a successful litigant from realising the results of his litigation, pending the determination of some other proceeding.
In this matter, I am not persuaded there is any such circumstance. There is, seemingly, no connection between the subject of the determination now a judgment in the District Court and the action and counterclaim the subject of plaint 6/94 in the District Court, other than that the parties are the same persons. The matters, the subject of the District Court action and counterclaim seemingly arise out of quite unconnected transactions.
The mere assertion by Jeffrey Forrest in his affidavit that if he pays Andrews the $15,000, the subject of the judgment registered in the District Court, that he believes he will be unable to recover or will have difficulty in recovering from Andrews any judgment he may obtain in the District Court action is quite insufficient to ground a stay.
The summons is dismissed with costs.