Camm v. ASI Development Company P/L

SUPREME COURT OF QUEENSLAND

CITATION:

Camm v ASI Development Company P/L [2007] QCA 300

PARTIES:

CAMM, Gary Stirling
(defendant/appellant)
v
ASI DEVELOPMENT CO PTY LTD ACN 096 527 123
(plaintiff/respondent)

FILE NO/S:

Appeal No 8134 of 2007
DC No 533 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Application for Stay of Execution

ORIGINATING COURT:

District Court at Maroochydore

DELIVERED EX TEMPORE ON:

20 September 2007

DELIVERED AT:

Brisbane

HEARING DATE:

20 September 2007

JUDGE:

Keane JA

ORDER:

1. Application for stay refused

2. Costs of application reserved to hearing of appeal

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER RULES OF COURT – STAYING PROCEEDINGS – where applicant failed to comply with consent order for delivery up of possession – where applicant sentenced to six months imprisonment for contempt – where respondent failed to comply with r 665(3) Uniform Civil Procedure Rules 1999 (Qld) – whether stay should be granted pending hearing of appeal

Uniform Civil Procedure Rules 1999 (Qld), r 371, r 665(3)

COUNSEL:

A C Smith for the appellant
A J Kimmins for the respondent

SOLICITORS:

McMahons Solicitors & Attorneys for the appellant
Carl Blumen for the respondent

KEANE JA:  The applicant, Mr Camm, was the defendant in an action commenced by the respondent in December 2001 for specific performance of an agreement by Mr Camm to sell the barge the "MV Edna" to the respondent.

On 3 October 2006, the day appointed for the trial of the action, Mr Camm consented to an order of the Court that he would: "…forthwith take any and all such steps to give effect to declarations [that the [respondent] is the legal and beneficial owner of the barge…MV Edna] including transfer to the [respondent] of title…in the…MV Edna and delivery up of possession of the MV Edna to the [respondent] or its solicitor.”

Mr Camm did not comply with his undertaking, and, consequently, the respondent applied to the District Court at Maroochydore that he be dealt with for his contempt of the Court.

On 24 August 2007, Mr Camm, who was unrepresented at the time, was found guilty of contempt for his failure to deliver up possession of the "MV Edna" to the respondent.  He was sentenced to six months imprisonment without parole.

Mr Camm has appealed against these orders and now seeks a stay of the orders pending the determination of that appeal.  There is evidence that Mr Camm suffers from a number of ailments including ischaemic heart disease.  It is also said that his incarceration has had a serious effect upon his mental health.  He has no assets.

On the respondent's behalf, it is submitted that this application for a stay is misconceived on the basis that the only way for Mr Camm to be released from prison is pursuant to an application for bail pending appeal under the Bail Act 1980 (Qld). The respondent relies in this regard on decisions in Ex Parte Maher [1986] 1 Qd R 303 and Hansen v DPP [2003] QCA…