Allen v Perpetual Trustees

[2011] WASCA 187

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   ALLEN -v- PERPETUAL TRUSTEES [2011] WASCA 187

CORAM:   PULLIN JA

MURPHY JA

HEARD:   26 AUGUST 2011

DELIVERED          :   26 AUGUST 2011

FILE NO/S:   CACV 86 of 2011

BETWEEN:   KERRY ALLEN

Appellant

AND

PERPETUAL TRUSTEES
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :MASTER SANDERSON

File No  :CIV 1030 of 2011

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

1. PULLIN JA:  This appeal has been listed as a result of a Registrar's Notice to Attend, indicating 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 issued a writ against the appellant and Brett Robert Allen, seeking an order for possession of property and costs pursuant to the mortgage giving right to possession.

2. On 28 June 2011, Master Sanderson made an order that the appellant deliver up vacant possession of the property within 28 days.  On 8 August 2011, the appellant commenced this appeal against the master's order.  On the same day the appellant filed an application stating that she applied for an 'injunction'.  There was a supporting affidavit indicating that it was in support of an application for a stay of judgment.  The affidavit reads:

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

   Since the 19th 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.

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

4. MURPHY JA:  I agree.