Brodsky v Willi[2018] QDC 225

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for a stay of any proceedings taken by the plaintiffs/respondents to enforce the judgment of his Honour Judge Robertson which was made in the Maroochydore District Court on the 29^th of January 2018.  And, in particular, the enforcement hearing which was set down for continuation on the 20^th of July this year.  The sole ground for the stay is that an appeal has been filed in the Court of Appeal, although as I now understand it there is an application for leave to appeal under the relevant legislation that must be first determined. I note also that the notice of appeal was filed approximately 88 days out of time, so there must also therefore be an application for an extension of time. 

2. [2]
   I note that the Uniform Civil Procedure Rules, rule 761(1) provides that the starting of an appeal does not stay the enforcement of the decision under appeal. The respondent has submitted and I accept it as a correct statement of law that the court has an unfettered discretion as to whether or not to grant a stay and, if so, as to the terms and that the court might weigh considerations such as the balance of convenience and the competing rights of the parties before it.

3. [3]
   And it is not for this court to speculate about the applicant’s prospect of success before the Court of Appeal, although ordinarily this court would make some preliminary assessment about whether the applicant has an arguable case. In that regard, I have read the decision of his Honour Judge Robertson in preparation of this matter. Now, I understand that the President of the Court of Appeal is to consider this matter and give directions on the 18^th of July this year. 

4. [4]
   The respondents anticipate that they will be submitting at that time that the applicant has demonstrated no arguable case and have provided me or this court with a copy of the outline of argument in that regard. Now, in a matter such as that before me today the applicant of course bears the onus of showing that the case is appropriate for a stay to be granted. In Federal Commissioner of Taxation v Myer Emporium Ltd 160 CLR 220 Dawson J said that the discretion to stay proceedings is only to be exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of litigation pending the determination of an appeal.

5. [5]
   The only ground that has been advanced on behalf of the applicant is that they have lodged an appeal that their lawyers were incompetent and that they will lose their house if the appeal is not successful. In other words, the applicant submits that financial difficulty would arise for him and his wife if the stay order is not made and which would, in his submission, justify the making of such an order. Justice Holmes, as she then was, in Willemse Family Company Proprietary Limited v Deputy Commissioner of Taxation [2003] 2 Qd R at 334 outlined the test in an application such as this as including something out of the ordinary being required to make the stay appropriate and makes a distinction between financial difficulty and extreme personal hardship.

6. [6]
   The respondent has submitted that there is an inference to be drawn from the applicant’s resistance to and failure to cooperate in the provision of financial position information in the enforcement proceedings that have taken place thus far. It is further submitted that a further inference is that the applicant will seek to conceal or dispose of assets during the delay period. And in that regard has submitted as to certain documents and things that have occurred to the present time which I do not need to detail at this point in time. At the end of the day I am left in the position in this matter where the applicant has presented no evidence whatsoever.

7. [7]
   There is an application pursuant or made under rule 800 of the UCPR. Rule 800(2) says that an application must be supported by an affidavit stating the facts relied on by the enforcement debtor. The only affidavit material before the court is one which effectively indicates that an appeal has been lodged, but it takes it no further than that. There is no affidavit material before the court in relation to financial hardship nor any financial documentation to support the claim which has been made from the bar table. As I indicated during the course of submissions, I have read the decision of Judge Robertson and, as I have already indicated, it is not for this court to be making decisions as to the likelihood of the success of any appeal.

8. [8]
   However, this court is required to make some preliminary assessment about whether there is an arguable case for the appellate court to consider. Having read the decision of his Honour it appears to me that there is no apparent error of fact or law or inherent illogical reasoning involved in his very detailed judgment. It was a matter which was determined on the basis of credibility and reliability of witnesses and of course there can be no dispute that his Honour was best positioned to make such an assessment. It is a matter that has had a long history. As I understand his Honour’s decision, it was a matter that was before the District Court only because of the applicant’s late counterclaim.

9. [9]
   It is of course true to say, as I have already mentioned, finality of proceedings is an important consideration, and I can discern on the material before the court no prospect that the applicant has a good arguable case on appeal, and of course I am unable to make any assessment on the applicant’s statement from the bar table that he had incompetent lawyers. Any such statement of course from the position that I presently sit, in dealing with today’s matter, must be viewed in light of the comments made by his Honour Judge Robertson as to the credibility and reliability of each of the applicants. And there is no material before me which in any way would allow me to be satisfied that the applicants will be disadvantaged if a stay is not ordered. And in all of those circumstances the application is dismissed.