Briggs v Lunt - [2010] WASCA 127

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BRIGGS -v- LUNT [2010] WASCA 127

CORAM: PULLIN JA

HEARD: 11 JUNE 2010

DELIVERED : 11 JUNE 2010

FILE NO/S: CACV 60 of 2009

BETWEEN: PETER BRIGGS
First Appellant
NEW RESOURCE HOLDINGS PTY LTD
Second Appellant
AND
WILLIAM TREVOR LUNT
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :EM HEENAN J
Citation  :LUNT -v- BRIGGS [2009] WASC 134
File No  :CIV 1501 of 2001, CIV 1974 of 2001

Catchwords:

Practice and procedure - Application to remit application pending in General Division - Whether any power to make such an order - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Appellant               :     Mr P G McGowan
Second Appellant          :     Mr P G McGowan
Respondent:     Mr B W Duckham

Solicitors:

First Appellant               :     Vincent Partners
Second Appellant          :     Vincent Partners
Respondent:     B W Duckham & Co

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

Nil

PULLIN JA: The appellant's application is to have an application pending before EM Heenan J remitted for hearing in the Court of Appeal. I am not satisfied that there is any basis for this court making such an order and interfering with an application which is properly pending before EM Heenan J, but I will mention the background.
The appeal is against the judgment of EM Heenan J in action CIV 1501 of 2001 and CIV 1974 of 2001. The two actions involve claims for the balance of debts due for services rendered by Mr Lunt to New Resource Holdings (WRS), which are initials relevant due to an earlier name of the second appellant.
Mr Lunt as plaintiff relied upon a consultancy agreement dated 12 April 1991 as a source of the obligation by WRS to pay the consultancy fees which was extended by directors of WRS by letter dated 23 June 1993. Mr Briggs and WRS denied that the two documents were 'authentic' which EM Heenan J said amounted to a claim that the agreement of 12 April 1991 was at least in part a forgery.
In relation to the action against Mr Briggs there was a debt of $652,900 recorded as consultancy fees in the accounts of WRS as due to Mr Lunt as at 30 June 1994.
The plaintiff's case was that WRS was to be taken over by a New Zealand company, Max Resources Ltd, which after first negotiating to buy the shares in WRS ended up purchasing the assets and undertaking of WRS.
The plaintiff's case was that in the course of negotiations with Max Resources, Mr Briggs wanted to have the indebtedness of WRS to Mr Lunt removed from the balance sheet of 30 June 1994 and extinguished as a liability of WRS and according to Mr Lunt it was agreed that the debts be removed but only on condition that Mr Briggs personally assumed liability for that debt.
Mr Lunt claimed that Mr Briggs agreed to this by a letter dated 20 June 1995 signed by Mr Briggs. Mr Lunt claimed that as a result of subsequent transactions he was paid $135,000 on behalf of WRS in reduction of the $652,900 owing, bringing the balance owing by Mr Briggs to $517,900. It was for that sum which Mr Lunt sued Mr Briggs along with interest.
In the second action Mr Lunt said that he continued to provide consultancy services to WRS and EM Heenan J found in the second action that indeed a sum in excess of $400,000 was due by WRS to Mr Lunt. The judgments entered in relation to those two actions were $980,266 against Mr Briggs and $830,000 against WRS, these being the amount of the consultancy fees in each case plus interest.
An order for suspension was made in relation to the judgment in this matter and in relation to the judgment in another action between these parties which is a case which is now the subject of appeal in CACV 78 of 2009 in which WRS had obtained judgment against Mr Lunt for moneys which were said to have been wrongly paid away from that company as a result of the actions by Mr Lunt.
The order for suspension, the mutual suspension orders, were dated 1 July 2009 and reflected an agreement between the parties but it was subject to an order that:
In the event of any appellant in CACV 78 of 2008 and CACV 60 of 2009 not proceeding with his or their respective appeals within the time limit set down by the rules or by the court the other party will summarily be entitled to uplift the suspension granted and proceed to execute the judgment.
To a large degree the two appeals have not proceeded as contemplated by the rules but many of the delays which have taken place have been due to bumbling by some of those responsible for advising the parties and in several cases in both appeals there have been consents to extensions of time for steps to be taken.
There is no doubt that both appeals are taking too long to get to court but there is no reason why they should not very soon be listed for hearing and it is certainly not the case, as has apparently been suggested to EM Heenan J, that it would take a year before the appeals could be heard after they were ready for hearing.
In relation to the proceedings in the case involving the judgment in this case I note that the trial before EM Heenan J was in February and March 2009. His reasons were published on 18 May 2009. There was an appeal notice on 28 May 2009 by the appellants in this case. On 29 June 2009 there was a consent by Mr Lunt to extend the time for filing of the appellant's case. On 7 August 2009 the appellant's case was filed. On 15 September 2009 the respondent's answer was filed. In October 2009 there was an amended appeal notice and appellant's case and on 27 November 2009 a further amended case was filed.
On 25 May 2010, a considerable time after the filing of the amended case, an amended answer was filed by Mr Lunt and on 2 June 2010 this application was made to remit the hearing which was then on foot before EM Heenan J to, in effect, lift the suspension order that had been made in relation to the judgment that his Honour had given in favour of Mr Lunt.
It is also clear from the transcript of the proceedings before EM Heenan J on 3 May 2010 that his Honour made an order that Mr Briggs attend before the court to give oral evidence and produce a statement of assets and liabilities, but he was not prepared to make the order lifting the suspension order but instead made programming orders for the filing of the affidavit and otherwise adjourned the application, indicating that if it was to be relisted, it would not be relisted before mid‑June.
The Briggs parties have now requested that the application be remitted to be heard by the Court of Appeal. The Court of Appeal entertains appeals against orders. It cannot interfere in proceedings taking place in the general division and nothing in the appellant's submissions convinces me that it can.
It is true that the Court of Appeal may make a suspension order in relation to a judgment which is under appeal but there would be no point in making that application or making a suspension order when at the moment there is in place an agreement for mutual suspension orders reflected in a consent order.
If the appellant wishes to apply for a suspension order from this court it would be required to show an entitlement to such an order, but that is beside the point. The point at the moment is that the application to remit must be dismissed and I would so order.