Greg Roughsedge Realty Pty Ltd v Whitecross
[2001] QDC 52
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- Greg Roughsedge Realty Pty Ltd v Whitecross[2001] QDC 52
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Greg Roughsedge Realty Pty Ltd v Whitecross[2001] QDC 52
Greg Roughsedge Realty Pty Ltd v Whitecross[2001] QDC 52
DISTRICT COURT OF QUEENSLAND
CITATION: | Greg Roughsedge Realty Pty Ltd v. Whitecross & Anor. [2001] QDC 052 | |
PARTIES: | GREG ROUGHSEDGE REALTY PTY LTD (ACN 066 121 284)(Plaintiff) v RAYMOND JOHN WHITECROSS(First Defendant) And SHARON BRENDA WHITECROSS(Second Defendant) | |
FILE NO/S: | 233/1996 | |
DIVISION: | Civil | |
PROCEEDING: | Chambers | |
ORIGINATING COURT: | Maroochydore | |
DELIVERED ON: | 6 April 2001 | |
DELIVERED AT: | Maroochydore | |
HEARING DATE: | 26 March 2001 | |
JUDGE: | Robertson DCJ | |
ORDER: | I order that:
| |
CATCHWORDS: | PRACTICE – Stay of Execution – Applicant seeks order to stay enforcement of District Court judgment pending determination of appeal – judgment given for plaintiff in action regarding real estate agents’ commission – whether applicant has “reasonably arguable grounds of appeal” Cases cited Federal Commissioner of Taxation v. Myer Emporium Limited (1986) 160 CLR 220 Croney v. Nand [1999] 2 Qd R 342 Daysea Pty Limited v. Watpac Australia Pty Limited [2000] QDC 306 Alexander v. Cambridge Credit Corporation Ltd [1985] 2 NSWLR 685 Andrews v. John Fairfax & Sons [1979] 2 NSWLR 184 Barry v. National Australia Bank [2000] QCA 12 (4.2.2000) Jennings Construction Ltd v. Burgundy Royale Investments Pty Ltd (1986) 61 ALJR 102 Griffiths v. Australian Postal Commission (1987) 87 FLR 139 Salamon Nominees Pty Ltd v. Moneywood Pty Ltd [1982] QCA 440 (22.12.1998) Moneywood Pty Ltd v. Salamon Nominees Pty Ltd [2001] HCA 2 (8.2.2001) Edelson v. Ward (No. 2) (1983) 63 ALJR 346 Statutes judicial considered Uniform Civil Procedure Rules, r 761 | |
COUNSEL: | D Kelly (for the applicant) R Morgan (for the respondent) | |
SOLICITORS: | Garland Waddington (for the applicant) Elias Mumford (for the respondent) | |
- [1]This is an application pursuant to r. 761(2) of the Uniform Civil Procedure Rules. The applicant first defendant seeks an order that enforcement of a judgment of the District Court of Queensland dated 31st January 2001 be stayed until the hearing and determination of an appeal to the Court of Appeal against that judgment.
- [2]Rule 761 is in these terms:
“(1)The starting of an appeal does not stay the enforcement of the decision under appeal.
- (2)However, the Court of Appeal, a judge of appeal or the court that made the order appealed from may order a stay of the enforcement of all or part of a decision subject to an appeal.”
- [3]The plaintiff commenced proceedings in this court by way of plaint on the 13th August 1996. Subsequently the plaintiff applied for summary judgment and leave to defend was granted to the defendants on a number of conditions relevantly including a condition that the defendants lodge a bank guarantee for the sum of $84,887.50 with the Court. In due course a bankers undertaking given by Westpac Banking Corporation dated the 7th November 1996 was lodged with the court. The matter came on for trial before His Honour Judge McGill SC DCJ on the 25th September 2000. His Honour delivered judgment on the 22nd December 2000. He ordered that the first defendant pay the plaintiff $58,387.50 together with interest. The claim against the second defendant was dismissed. His Honour adjourned the matter to a later date for determination of issues relating to interest and costs. On the 31st January 2001 His Honour ordered that the judgment be varied to $81,743.50, including $23,355.00 by way of interest. On that day His Honour ordered as follows:
“The Registrar call up the bank guarantee held as security and pay $81,742.50 to the plaintiff’s solicitors in satisfaction of the judgment and pay the balance to the plaintiff’s solicitors following the determination of the costs payable to the plaintiff by assessment or agreement in part satisfaction of the costs order.”
- [4]On the 19th January 2001 the first defendant lodged a Notice of Appeal against the judgment given on the 22nd December 2000. No application has been made to the Court of Appeal or a Judge of Appeal for a stay. This application was filed in the registry on the 23rd February 2001, returnable on the 26th March 2001. The plaintiff’s solicitors were served with the application on or about the 26th February 2001, and then made application for an order that the hearing date be vacated and that the matter be heard on the 12th March 2001 before His Honour Judge McGill. Unfortunately the plaintiff’s solicitors had not complied with rule 444 of the Uniform Civil Procedure Rules and the application was dismissed with costs.
The Law
- [5]The exercise of the power to stay execution of a judgment pending an appeal is an exercise of discretion pursuant to rule 761(2) of the Uniform Civil Procedure Rules, which discretion is contrary to the ordinary rule that the plaintiff is entitled to the fruits of the litigation pending appeal: see Federal Commissioner of Taxation v. Myer Emporium Limited (1986) 160 CLR 220 at 222. The onus is on the applicant to satisfy the court that this is an appropriate case in which the general rule should be displaced: see Croney v. Nand [1999] 2 Qd R 342 at 348, applied in Daysea Pty Limited v. Watpac Australia Pty Limited [2000] QDC 306 (27.7.00). It is not necessary for the applicant to demonstrate any special or exceptional circumstances. It is merely sufficient that the applicant demonstrates a reason or an appropriate case to warrant the exercise of discretion in his favour: Alexander v. Cambridge Credit Corporation Ltd [1985] 2 NSWLR 685 at 694. A relevant and important factor concerns the probability that if the moneys are paid under the judgment and the appeal is successful what are the prospects of the moneys paid being recovered by the successful appellant. In this regard the applicant has filed material which is not contested from which I conclude that the plaintiff is a company which could appropriately be described as a shell without assets.
- [6]The plaintiff/respondent submits that that is not sufficient reason to grant a stay in the circumstances of this case. The plaintiff correctly submits that a relevant consideration is whether the appeal is genuine and is based on reasonable grounds: Andrews v. John Fairfax & Sons [1979] 2 NSWLR 184 at 189. In the plaintiff’s submission this consideration is critical. Indeed, the bulk of the plaintiff’s written submissions are addressed to its submission that the defendant’s prospects of a successful appeal are not good. In his submission on behalf of the defendant/applicant, Mr Kelly submitted that prospects of success is only a relevant consideration if this Court determines that the appeal is spurious. He submitted that it is not for this Court to otherwise determine the merits of the appeal. As authority for this submission he referred to the judgment of Pincus JA in Barry v. National Australia Bank [2000] QCA 12 (4.2.2000). Having read His Honour’s decision I don’t agree that it is authority for that proposition. His Honour appears to have taken considerable trouble to assess the correctness of the primary judge’s original decision in relation to which leave was being sought to appeal to the Court of Appeal. Having reviewed the authorities I am satisfied that to enliven a stay on this ground the applicant must at the very least show “reasonably arguable grounds of appeal”: see Andrews v. John Fairfax & Sons (supra.) at 189. The other factors referred to in Jennings Construction Ltd v. Burgundy Royale Investments Pty Ltd (1986) 61 ALJR 102 at 103 are “whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; whether the grant of a stay will cause loss to the respondent; and … where the balance of convenience lies”. In Griffiths v. Australian Postal Commission (1987) 87 FLR 139, Myles CJ at 141 observed:
“An applicant for a stay of execution pending appeal can hardly hope to succeed if he or she does not show that there is a reasonably arguable ground of appeal.”
- [7]The plaintiff’s claim was for agent’s commission on the sale of real estate. There was a written agreement appointing the plaintiff as the defendant’s agent which was Exhibit 10 before His Honour Judge McGill. The defendant submitted that in accordance with s. 76(1)(b) of the Auctioneers and Agents Act 1971 the plaintiff was not a holder of a relevant licence “at the time of the transaction” and that this referred to the time of appointment as the agent, not the time of entry into the contract between the vendor and purchaser. This argument was rejected by His Honour Judge McGill in reliance on the decision in Salamon Nominees Pty Ltd v. Moneywood Pty Ltd [1982] QCA 440 (22.12.1998) per Chesterman J. His Honour’s conclusions on this point were confirmed as correct by the High Court in Moneywood Pty Ltd v. Salamon Nominees Pty Ltd [2001] HCA 2 (8.2.2001). Since the High Court judgment in Moneywood Pty Ltd v. Salamon Nominees Pty Ltd (supra.), which approved the dissenting judgment in the Court of Appeal of McPherson JA; it could be argued that the judgment of His Honour Judge McGill if anything has interpreted the law in a way which is more favourable to the defendant/applicant than is sanctioned by the High Court. At the time judgment was delivered on the 22nd December 2001, His Honour was bound by the majority decision of the Court of Appeal in Salamon Nominees Pty Ltd v. Moneywood Pty Ltd (supra.). It has to be said that a careful analysis of His Honour’s reasons indicate that although he was bound by the majority decision in Salamon Nominees which he followed relevantly, His Honour nevertheless was significantly persuaded by the dissenting judgment of McPherson JA which has now been confirmed as correct by all members of the High Court. In my view, the first defendant’s prospects on appeal are limited; but I can not say conclusively that there is no reasonably arguable ground of appeal.
- [8]The other factor referred to in Jennings Construction Ltd v. Burgundy Royale Investments Pty Ltd is whether the grant of a stay will cause loss to the plaintiff. In this regard it is significant that the action arose out of circumstances which occurred in late 1994 and early 1995. The action was not commenced until the 13th August 1996 with judgment being given on the 22nd December 2000. The applicant/defendant submits therefore that it could hardly be said that the respondent/plaintiff will be prejudiced by being kept out of the fruits of the judgment for a further period of six months if the stay is granted; when its action was not determined for some six years after the cause of action arose. Likewise, the security would otherwise remain on foot, there being no request by the applicant for its removal. The plaintiff is able to access a guarantee binding on the applicant at the order of the court in the event that the appeal is unsuccessful. The material relied upon by the first defendant/applicant discloses that his financial position is poor; and enforcement of the guarantee now would place a further monthly burden on both himself and the second defendant, who was successful in her defence of the claim. The balance of convenience thus marginally favours the applicant. I can not agree that in those circumstances, the appeal is a mere device to delay the plaintiff’s entitlements: Edelson v. Ward (No. 2) (1983) 63 ALJR 346.
- [9]The matter is finely balanced. Having regard to the apparent impecuniosity of the plaintiff company, together with an absence of undertakings proffered by the respondent or its solicitors with respect to the holding of judgment moneys in trust pending the appeal; and also the lack of evidence about the plaintiff’s need at this particular moment as opposed to six months hence for the payment of the judgment sum, and notwithstanding my view of the merits of the appeal, I am persuaded that this is an appropriate case in which I should exercise my discretion in favour of the defendant/applicant. As Mr Kelly properly concedes, his client should bear the costs of the application.
- [10]In those circumstances, I will order that:
- execution of the judgment delivered by His Honour Judge McGill on the 22nd December 2000 and varied by order on the 31st January 2001 be stayed pending the determination of the appeal;
- the first defendant/applicant pay the plaintiff/respondent’s costs of and incidental to the application to be assessed on the standard basis or as agreed;
- The parties have liberty to apply.