Castlecity Pty Ltd v Newvintage Nominees Pty Ltd
[2000] WASC 305
•28 NOVEMBER 2000
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: CASTLECITY PTY LTD -v- NEWVINTAGE NOMINEES PTY LTD & ORS [2000] WASC 305
CORAM: ROBERTS-SMITH J
HEARD: 28 NOVEMBER 2000
DELIVERED : 28 NOVEMBER 2000
FILE NO/S: FUL 180 of 2000
CASTLECITY PTY LTD (ACN 009 453 169)
Plaintiff (Applicant)
AND
NEWVINTAGE NOMINEES PTY LTD (ACN 063 794 801)
First Defendant (Respondent)OMBULGARRI NOMINEES PTY LTD (ACN 008 885 390)
Second Defendant (Respondent)DEBIN NOMINEES PTY LTD (ACN 008 810 688)
Third Defendant (Respondent)CIVIL AND EARTHMOVING CONTRACTORS OF KWINANA PTY LTD (ACN 009 328 376)
Fourth Defendant (Respondent)
Catchwords:
Application for leave to appeal - Application referred to Full Court - Application for stay pending hearing - Claim for specific performance of contract for sale of land - Whether appeal would be rendered nugatory if stay not granted - Balance of convenience
Legislation:
Supreme Court Rules, O 63
Result:
Stay granted
Representation:
Counsel:
Plaintiff (Applicant) : Mr D P A Moen
First Defendant (Respondent) : No appearance
Second Defendant (Respondent) : No appearance
Third Defendant (Respondent) : No appearance
Fourth Defendant (Respondent) : No appearance
Solicitors:
Plaintiff (Applicant) : David Manera
First Defendant (Respondent) : No appearance
Second Defendant (Respondent) : No appearance
Third Defendant (Respondent) : No appearance
Fourth Defendant (Respondent) : No appearance
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Beswick v Beswick [1968] AC 58
Biala Pty Ltd v Mallina Holdings Pty Ltd (1989) 2 WAR 381
Castlemaine Tooheys Ltd v SA (1986) 161 CLR 148
Choir Pty Ltd v Advanced Commercial Finance, unreported; SCt of WA; Library No 7225; 3 August 1988
Chrisholm v Norgard (1991) 4 WAR 202
Custom Credit Corp (1992) 8 WAR 42
Dimitrou v Sotirov, unreported; SCt of WA; Library No 960315; 7 May 1996
Eng Mee Yong v Letchumanan [1980] AC 331
Gall v Kitchell (1924) 35 CLR 222
Goldfields Homes Pty Ltd & Anor [2000] WASC 139
Gracci [1998] WASC 46
Hellyer v Rangewood [1998] WASC 111
Ioppolo v Ioppolo, unreported; SCt of WA; Library No 2370; 12 July 1978
Jandric v Jandric & Anor [1999] WASC 22
Levi v Stirling, unreported; SCt of WA; Library No 070209, 9 May 1997
Lording v Lording, unreported; SCt of WA; Library No 2069; 20 June 1977
Marzo, unreported; SCt of WA; Library No 950110, 14 March 1995
Masters v Cameron (1954) 91 CLR 353
McBride v Sandland (1918) 25 CLR 69
Millett v Regent (1975) 1 NSWLR 62
Pillinger v Ropework services Int'l Pty Ltd (1989), unreported; SCt of WA; Library No 7976, 5 December 1989
Porter v McDonald & Anor [1984] WAR 271
Re: Jokai Tea Holdings [1992] 1 WLR 1196
Richardson v The Forestry Commission (1988) 164 CLR 261
Tatnam v Cumarasamy [1965] 1 WLR 8
Trifid Pty Ltd v Ratto [1985] WAR 19
ROBERTS-SMITH J: This is an application for a stay pending the hearing of an application for leave to appeal. The application, as I understand it, is made under O 63 of the Supreme Court Rules. The judgment sought to be stayed is a default judgment made on 25 October 2000 in consequence of non-compliance with a springing order made by Murray J on 25 October.
The springing order made by his Honour required the plaintiff by notice in writing to the defendants to specify the documents it intended to tender at trial by a particular date and time and unless the plaintiff served on the defendants, signed and dated written statements of the proposed evidence-in-chief of each witness, save expert witnesses, to be called by it by the same date and time, then the plaintiff's claim be dismissed and judgment be entered for the defendants with costs. That order not being complied with, the springing order was acted upon and took effect as I have said on 25 October and accordingly the plaintiff's action was dismissed and there was an order that the plaintiff pay the defendants' costs of the action to be taxed.
On 26 October 2000, the applicant lodged a Chamber summons for extension of time within which to comply with the springing order pursuant to O 3 r 5 of the Supreme Court Rules, together with an order that the default judgment be set aside. That was returnable on 31 October.
However, the respondents were not in a position to attend and argue the application and the matter was set down again for hearing on 2 November before Murray J. After hearing counsel his Honour refused to exercise his discretion to extend the time within which to comply with the springing order.
His Honour canvassed the history of the matter to that point and took the view that circumstances had not been shown to him which would occasion or necessitate the exercise of his discretion in favour of the plaintiffs.
The plaintiff (applicant) then filed a notice of motion for leave to appeal dated 17 November and that matter was listed to be heard on 21 November, although there too the date of the hearing was subsequently changed and it came on for hearing before Murray J on 23 November. After hearing counsel on that day, his Honour made orders referring the hearing of the application for leave to appeal to the Full Court for determination, reserving the costs of that application to the Full Court.
In support of the application for the stay of the order made on 25 October 2000, the applicant contends principally that, as I understand it, the appeal - were leave to be granted - would be rendered nugatory because what is involved is a claim in relation to the sale of land and the only remedy sought is one of specific performance.
The applicant has apparently protected its interests in the litigation and the land thus far by the registration of a caveat on the property, which of course is founded upon the caveatable interest through the litigation in the terms and conditions of the contract for sale. It is contended on behalf of the applicant that if the stay order is not made pending the application for leave to appeal and the appeal itself, there would be a very real likelihood that the respondents will deal with the property in such a way that the realisation of the contract - that is to say, an order for specific performance - would become impossible.
On the other side, as against the interests of the respondents it is said that there is no evidence before the court, and there had been no evidence before the court previously, of any detriment or disadvantage that the respondents would suffer were the caveat to remain.
There is of course no evidence before me in that regard but as I indicated to Mr Moen in argument that is hardly surprising considering this application is made ex parte. Nonetheless, Mr Moen informs me that when the matter was last before Murray J and a submission was made to him on behalf of the respondents that they would suffer prejudice, his Honour then indicated that there was no evidence before him to that effect either.
I have briefly read the reasons for decision of his Honour Murray J and have heard Mr Moen's submissions in relation to the basis of the application for leave to appeal and of course ultimately the appeal. I have to say, with respect to his Honour, that I would not be disposed to see, in the submissions made and the grounds of appeal proposed to be argued, at this stage, any great prospect of success. It seems to me there is a very real question whether or not the appeal would be sufficiently arguable were that to be the major consideration for the purposes of this application.
Be all that as it may, it does seem to me on balance however, albeit given the limited material presently before me, that the balance of convenience certainly falls in favour of the applicant, given the quite serious outcome of the potential loss of the property, and indeed the likely loss of the property, according to the submissions put to me were the default judgment not to be stayed and accordingly the interest of the applicant in the property to cease and therefore the underpinning interest for the caveat to disappear and accordingly the caveat be removed.
I am also encouraged in this view by the information given to me by Mr Moen that it is anticipated that the application for leave and the appeal - and I am assuming they would be heard together - are likely to be listed for hearing in December or early January.
As I say, under these circumstances it seems to me that the balance of convenience requires that the application be granted. There will accordingly be an order that the default judgment dated 25 October 2000 be stayed pending the outcome of the application for leave to appeal before the Full Court or further order of that court and that costs be reserved.
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