Best Bar Pty Ltd v Warn

[2018] WASCA 64

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   BEST BAR PTY LTD -v- WARN [2018] WASCA 64

CORAM:   MURPHY JA

HEARD:   4 MAY 2018

DELIVERED          :   7 MAY 2018

FILE NO/S:   CACV 20 of 2018

BETWEEN:   BEST BAR PTY LTD

Appellant

AND

JOHN ELLIOT WARN

Respondent

ON APPEAL FROM:

Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA

Coram:   BRADDOCK DCJ

Citation: WARN -v- BEST BAR PTY LTD [2018] WADC 17

File Number             :   CIV 2839 of 2015

Catchwords:

Practice and procedure - Application for stay pending appeal - Real risk that respondent may be unable to repay judgment debt - Turns on own facts

Legislation:

Civil Judgments Enforcement Act 2004 (WA)

Result:

Application allowed

Category:    B

Representation:

Counsel:

Appellant	:	Mr D R Clyne
Respondent	:	Mr M J Lourey

Solicitors:

Appellant	:	Kott Gunning
Respondent	:	Chapmans Barristers & Solicitors

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

Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222

The State of Western Australia v Cunningham [2017] WASCA 119

Warn v Best Bar Pty Ltd [2018] WADC 17

MURPHY JA:

1. On the application of the appellant, I ordered a stay of the orders made by Braddock DCJ pursuant to her reasons for judgment in Warn v Best Bar Pty Ltd[1] (primary decision).  I said I would subsequently publish reasons.  These are my reasons.

   [1] Warn v Best Bar Pty Ltd [2018] WADC 17.

2. The primary proceedings concerned a claim by the respondent for damages for personal injury to his back, allegedly resulting from the respondent's failure to take reasonable care for his safety and provide a safe system of work.  The primary judge found for the respondent, and ordered that the appellant pay damages of $1.389 million.

3. The appellant appeals the primary judge's decision, and filed its appellant's case on 21 March 2018.

4. There is no dispute that the respondent has no material assets beyond his entitlement to the judgment debt.  It is also not in dispute that the appellant has paid the respondent $250,000 in part satisfaction of the judgement debt.

5. In his affidavit affirmed on 1 May 2018, the respondent states that:

   1.He intends to seek financial advice as to how best to ensure that the judgment debt meets his and his family's needs for an indefinite period.

   2.He and his wife are currently renting, but are considering the purchase of a property.

   3.He is currently fit for employment, but has been unable to obtain alternative employment.

   4.He is unable to invest or utilise the $250,000 already paid until he knows whether or not he will receive the remainder of the judgment debt.  Most of it remains in his bank account.

6. In Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd,[2] Buss JA said:

   The nature of the criteria which are relevant to the exercise of this court's discretion to grant a stay of execution, pending an appeal, are well established.  The applicable principles are summarised by Murray and Parker JJ in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9]. Also see Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79, 81 - 87, 89 - 95; Kwa v Bank of Western Australia [2003] WASCA 163 [8] - [9].

   A stay of execution, pending an appeal, may be granted if the appellant appears to have reasonable prospects of success and there is a real risk that, if a stay is not granted and the judgment debt is paid, the respondent will be unable to repay the money if the appeal is allowed.  See Vosebe Pty Ltd t/as Batemans Bay Window and Glass v Bakavgas [2008] NSWCA 55 [18], [21] - [22] and the cases there cited.

   [2] Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222 [21] ‑ [22]. See also The State of Western Australia v Cunningham [2017] WASCA 119 [81] ‑ [82].

7. Although the respondent contends that the appellant has no reasonably arguable case, having considered the appellant's case and the respondent's answer, I am satisfied that it does for present purposes. The evidence that the respondent presently intends to obtain financial advice is lacking in any detail. The judgment has been on foot since 2 February 2018, and it appears that no such advice has been obtained to date. There is no satisfactory evidence that the money would be invested and preserved in assets which would not create practical difficulties in respect of relief if the appellant succeeded in its appeal. Whilst I do not doubt the respondent's present intention, experience indicates that intentions may change in response to changing circumstances, or even on the basis of second thoughts. In my view, there is, in all the circumstances, a real risk that if a stay is not granted and the judgment debt is paid, the respondent will be unable to repay the money if the appeal is allowed. Also, the judgment debt will accrue interest in the meantime,[3] and there is no suggestion that a delay will imperil the recovery of the judgment debt if the appeal were lost. Those matters, together with the not insignificant interim payment of $250,000, indicate that the balance of convenience is in favour of the appellant.

   [3] Section 8(1) of the Civil Judgments Enforcement Act 2004 (WA).

8. In all the circumstances, I was satisfied that it was in the interests of justice to grant a stay.  I ordered a stay until the determination of the appeal or further order, and gave the parties liberty to apply.

   I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

   CL
   ASSOCIATE TO THE HONOURABLE JUSTICE MURPHY

   7 MAY 2018