Briggs v Lunt [No 5]

[2011] WASCA 115

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   BRIGGS -v- LUNT [No 5] [2011] WASCA 115

CORAM:   PULLIN JA

NEWNES JA

HEARD:   14 APRIL 2011

DELIVERED          :   14 APRIL 2011

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 for stay of execution pending application for special leave to appeal to the High Court - Civil Judgments Enforcement Act 2004 (WA), s 15 - Principles governing exercise of discretion to make suspension order - Stay of execution on condition that moneys be paid into court

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 15(1)(b)

Result:

Application for suspension order granted with conditions imposed

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):

Commissioner of Taxation (Cth) v Myer Emporium Ltd (No 1) [1986] HCA 13; (1986) 160 CLR 220

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

Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; (1986) 161 CLR 681

1. REASONS OF THE COURT: This is an application for a suspension order under s 15(1)(b) of the Civil Judgments Enforcement Act 2004 (WA) pending an application for special leave to appeal to the High Court. This court has jurisdiction to grant a stay under the Act, and it is to this court that the stay application should first be made: Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; (1986) 161 CLR 681, 684.

2. Section 15(3) of the Act states that a suspension order should not be made unless special circumstances are shown. The usual approach taken by the court to an application for a suspension order pending appeal from a judge at first instance was stated in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308. The principles ordinarily applied are that a successful litigant will ordinarily be entitled to enforce the judgment pending the determination of any appeal.

3. This is particularly so where there are two judgments to sustain the respondent's entitlement.  It is for the applicant for a stay to move the court to a favourable exercise of its discretion.  A central issue will be whether the stay is necessary to preserve the subject matter or integrity of the litigation, or where refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal.

4. That is, without the grant of a stay, the right of  appeal would be rendered nugatory.  If that can be demonstrated, the stay will generally still be refused unless it could be established that the appeal has ultimately reasonable prospects of success.  The stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant.

5. This approach has been regularly applied in this court.  The need to show that the appeal will be rendered nugatory without the stay will be established by showing that there is a real risk that it will not be possible for the appellant to be restored substantially to his former position if the appeal succeeds:  see Commissioner of Taxation (Cth) v Myer Emporium Ltd (No 1) [1986] HCA 13; (1986) 160 CLR 220. In broad terms, the same principles are applied when an application for a stay is made to the High Court, although by then the case will have passed through two levels in the court system and as a result, substantial prospects of success on the application for special leave will have to be shown rather than reasonable prospects: see Jennings (685) (Brennan J).

6. The appellant begins by submitting that if it pays and special leave is granted by the High Court and the appeal succeeds, then the appellant will not recover the money paid because the respondent is impecunious.  The respondent denies that he is impecunious but states that in any event, he has no objection to a stay on condition that the money due is paid into court pending the application for special leave so that there is no risk that the money will not be repaid.  If payment into court occurs then there will be no difficulties in the way of the grant of relief if the appeal succeeds.  The appellant has raised another matter which is said to show that difficulties will be created in this case, and we will deal with that later in these reasons.  The second consideration is whether there is a substantial prospect of success on the special leave application.

7. By the first ground of appeal the appellant endeavours to raise a question of law by asserting that the finding in question was not open on the basis that there was no evidence to support it.  However, it is clear even from the appellant's submissions that although there was no direct evidence that Mrs Briggs signed the document the subject of the finding, there was evidence that the company acted subsequently as though it was bound by the document which provided evidence that the company accepted that Mrs Briggs had signed the document and from which it could be inferred that she did sign it.

8. The ground of appeal, although couched in terms of error of law, is really a ground challenging a finding of fact on the basis that the finding was against the weight of evidence. That being so it will be necessary to convince the High Court that special leave should be granted pursuant to s 35A(b) of the Judiciary Act 1903 (Cth). The appellant attempts to argue that Mr Briggs did not bother himself with the accounts of the company and therefore did not notice that the debt to Mr Lunt was increasing, which could only be if the agreement in question had been signed by Mr Briggs, and this depends upon the acceptance of Mr Briggs' evidence. The trial judge found Mr Briggs to be a witness of no merit.

9. In relation to the second ground of appeal, the appellant does not raise any question of law. The second ground contends that a finding of fact was against the weight of evidence. The appellant acknowledges that if special leave is to be granted for that ground it would have to be under s 35A(b) of the Judiciary Act.  In the opinion of the court, the appellant does not have a substantial prospect of obtaining special leave to appeal on the proposed grounds.  Finally, there is the balance of convenience to be considered.  If the stay is granted, the respondent will be held out of a substantial amount of money which two decisions of this court have held he was entitled to be paid years ago.  If the stay is granted it will benefit the appellant.  The appellant had holdings in various companies which he says are relatively insignificant or of no value.  The appellant has not been forthcoming with this information about those companies in which he owns shares or about his liabilities.  For example, it appears that the appellant has mortgaged his house property after the judgment and after the statement of assets and liabilities which has been deposed to was prepared.  There is no information as to why the bank would lend money to Mr Briggs if he has no capacity to service the loan.  It seems that he must control or at least have considerable influence over at least one of the companies which has given him a personal loan for $3 million to pay tax, albeit many years ago, but which allows the debt to remain outstanding as a loan.  It appears also that the appellant has been able to fund litigation, and from matters dealt with in this court it appears that the appellant employs an assistant to attend court.  No information has been provided about how the appellant is able to afford to employ the assistant to retain solicitors and to retain independent counsel, including senior counsel, in relation to the litigation based on the income that he says that he has.  There were two other relevant factors.  One is mentioned by the appellant which is the agreement reached between the parties to stay various judgments, including the judgment in question, until the appeal to this court was determined.

10. That agreement, of course, came to an end when the judgment in this court was handed down and would not seem to be of any further relevance.  Secondly, it appears that discussions took place after this application was adjourned on the last occasion.  The respondent contends that there was an agreement to pay moneys into court, but that is not absolutely clear from the affidavit that has been filed today.

11. What is clear is that there was a preparedness on Mr Briggs' part to discuss the resolution of the application, which would only be possible if he had some means of making a proposal which might have been accepted by the respondent.  Finally, the appellant claims that there are special circumstances based upon the limited information he has provided, suggesting that he would have to sell his house to pay the debt or even to pay moneys into court, and that if he obtains special leave to appeal and succeeds on the appeal, he will then have lost his house.

12. From this he argues that the appeal will be rendered nugatory in the sense mentioned in the Myer Emporium case which we have already referred to.  To show that there is a real risk of that occurring, full disclosure about the appellant's financial circumstances would be necessary.  Because the appellant has not been fully forthcoming about his financial circumstances, it is not possible to give that claim very much weight.

13. Taking into account all of the factors mentioned, the court's discretion should be exercised against the grant of an unconditional stay; however there will be a conditional stay and the order will be that upon the first appellant paying into court a sum of money which we need to discuss further, the enforcement of [3] of the judgment dated 22 February 2011 in CACV 60 of 2009 and [2] of the judgment in CIV 1501 of 2001 will be stayed.  Until payment into court, the respondent will be free to proceed with enforcement.