Allen v Lillimagi

[2011] WASCA 186

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   ALLEN -v- LILLIMAGI [2011] WASCA 186

CORAM:   PULLIN JA

MURPHY JA

HEARD:   26 AUGUST 2011

DELIVERED          :   26 AUGUST 2011

FILE NO/S:   CACV 87 of 2011

BETWEEN:   KERRY ALLEN

Appellant

AND

ROY LILLIMAGI
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :MASTER SANDERSON

File No  :CIV 2438 of 2010

Catchwords:

Application for stay pending appeal - Whether special circumstances - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     No appearance

Solicitors:

Appellant:     In person

Respondent:     No appearance

Case(s) referred to in judgment(s):

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308

Lillimagi v Allen [2011] WASC 46

1. PULLIN JA: This appeal has been listed as a result of a Registrar's Notice to Attend, which advises that the purpose of the hearing is to consider the appellant's application for a stay dated 8 August 2011. The background is that the respondent commenced proceedings in the Supreme Court for an order under s 126(1) of the Property Law Act 1969 (WA).

2. It appears that in 2006 the respondent and the appellant and Brett Robert Allen purchased two properties in Port Kennedy. Those parties became registered proprietors. The respondent commenced proceedings, seeking an order for sale, and the respondent applied pursuant to O 13 r 8 of the Rules of the Supreme Court 1971 (WA) for judgment. The master concluded that the respondent was entitled to an order for sale: see Lillimagi v Allen [2011] WASC 46. That order was made on 6 March 2011.

3. Five months later, on 8 August 2011, the appellant instituted an appeal against Master Sanderson's order.  The appeal notice was, therefore, filed well out of time.  On the same day the appellant applied for a stay of judgment.  An affidavit was filed in support, being an affidavit said to support an application for extension of time and for a 'stay injunction'.  The affidavit read:

   I Kerry Anne Allen of 41 Toledo Circuit Port Kennedy unemployed make oath and say as follows:

   Since the 19 January 2011 when I filed documents to the Supreme Court which the contents have been acknowledged as per transcripts and have never been taken notice of in any court hearing.  This is in the matter of CIV 2438/2010 & CIV 1030/2011 and others.

   I have referred to the Magna Carta charta [sic] Ref L4014 Tho 1982 ch 330, 335 chap xvi 409, 410 and also the Public Disclosure Information Act and the Privacy Act.

   I will also send a copy to Commonwealth Ombudsman as he has full copies of all documents that have been submitted to the Supreme Court.

4. Whether the application is treated as an application for stay under the Supreme Court (Court of Appeal) Rules 2005 (WA) or an application for a suspension order under s 15(1)(b) of the Civil Judgments Enforcement Act 2004 (WA), the same principles apply. Special circumstances have to be shown, justifying departure from the ordinary rule that a successful litigant is entitled to enforce a judgment pending a determination of the appeal. It is for an applicant for a stay to move the court to a favourable

exercise of its discretion:  see generally Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308.

1. The appellant has not provided any reason for granting a stay and has certainly not demonstrated the existence of any special circumstances.  The application for a stay should be dismissed.

2. MURPHY JA:  I agree.