Cth Bank v Nagamuthu - [2002] QCA 484

SUPREME COURT OF QUEENSLAND

CITATION:

Cth Bank v Nagamuthu [2002] QCA 484

PARTIES:

COMMONWEALTH BANK OF AUSTRALIA
ACN 123 123 124
(plaintiff/respondent)
v
ELAKKUMIDEVI NAGAMUTHU
(defendant/applicant)

FILE NO/S:

Appeal No 10001 of 2002
DC No 222 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

Application for Stay of Execution
Application for Security for Costs

ORIGINATING COURT:

District Court at Cairns

DELIVERED EXTEMPORE ON:

7 November 2002

DELIVERED AT:

Brisbane

HEARING DATE:

7 November 2002

JUDGE:

Davies JA

ORDER:

1.    Dismiss the application by the applicant for a stay of       enforcement of the judgment dated 31 May 2002.
2.    The applicant to provide security for costs of       her           proposed appeal within 14 days of paying into Court      or otherwise securing to the satisfaction of the Registrar the sum of $7,000, failing which any       application for leave to appeal and any appeal will       stand dismissed with costs.
3.    The costs of these applications will be costs in the       appeal.

CATCHWORDS:

APPEAL AND NEW TRIAL - APPEAL-PRACTICE AND PROCEDURE - QUEENSLAND - STAY OF PROCEEDINGS - where the respondent bank obtained default judgment against the applicant - where the applicant has admitted to owing the respondent bank a debt - where the application for leave to appeal and the appeal have little prospect of success - whether a stay of enforcement of the judgment should be granted

APPEAL AND NEW TRIAL - APPEAL-PRACTICE AND PROCEDURE - QUEENSLAND - SECURITY FOR COSTS - WHEN REFUSED - where the respondent bank obtained default judgment against the applicant - where the applicant has admitted to owing a the respondent bank a debt - where the application for leave to appeal and the appeal have little prospect of success - whether the applicant should be ordered to provide security for costs of her appeal

District Court of Queensland Act 1967 (Qld), s 118

Carr v Finance Corporation of Australia (1981) 147 CLR 246, considered

COUNSEL:

The applicant appeared on her own behalf
J Jacobs (Cairns) for the respondent

SOLICITORS:

The applicant appeared on her own behalf
A J Mullumby for the respondent

DAVIES JA: On 31 May 2002 the respondent bank obtained judgment against the applicant, Dr Nagamuthu, for recovery of possession of land and a dwelling-house on that land of which the applicant is the registered proprietor. The claim was based on the applicant's default under the terms of a bill of mortgage granted by her as security for an advance by the bank to her to enable her to purchase the property.

On 30 September 2002 the applicant filed an application to stay enforcement of the default judgment and the application was dismissed by a District Court judge on 17 October 2002.

Then on 23 October 2002 the applicant filed an application to set aside the default judgment of 31 May 2002. No substantial basis was shown for that application. On the contrary, the applicant admitted owing a debt which it seems is perilously close to or possibly even more than the value of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] QCA 484
Decision Date: 7 November 2002

CaseChat Overview and Summary

The Court heard an application by the applicant, Nagamuthu, to stay the enforcement of a default judgment obtained by the Commonwealth Bank. The judgment was entered against the applicant due to her failure to respond to the bank's claim. The applicant admitted owing the bank a debt but sought a stay of the enforcement of the judgment, arguing that the application for leave to appeal and the appeal itself had little prospect of success. Additionally, the bank sought an order for the applicant to provide security for the costs of the proposed appeal.

The primary issue before the Court was whether the applicant should be granted a stay of enforcement of the judgment and whether she should be ordered to provide security for the costs of her appeal. The Court considered the statutory provisions and relevant case law, particularly the decision in Carr v Finance Corporation of Australia, to determine the appropriate course of action.

In its reasoning, the Court held that the application for a stay of enforcement should be dismissed as the applicant had little prospect of success in her appeal. The Court noted that the applicant had admitted to owing the debt and the appeal appeared to be without merit. Furthermore, the Court found that the applicant should be ordered to provide security for the costs of her appeal, as the application for leave to appeal and the appeal itself had little prospect of success. The Court made it clear that if the applicant failed to provide the required security within the specified time, any application for leave to appeal and any appeal would be dismissed with costs.

The Court ordered that the application for a stay of enforcement be dismissed and that the applicant must provide security for the costs of her appeal within 14 days of paying or securing the sum of $7,000. The Court also ordered that the costs of these applications would be costs in the appeal.

Orders

Orders of the court

1. Dismiss the application by the applicant for a stay of enforcement of the judgment dated 31 May 2002.

2. The applicant to provide security for costs of her proposed appeal within 14 days of paying into Court or otherwise securing to the satisfaction of the Registrar the sum of $7,000, failing which any application for leave to appeal and any appeal will stand dismissed with costs.

3. The costs of these applications will be costs in the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Cth Bank v Nagamuthu [2002] QCA 484
PARTIES:	COMMONWEALTH BANK OF AUSTRALIA ACN 123 123 124 (plaintiff/respondent) v ELAKKUMIDEVI NAGAMUTHU (defendant/applicant)
FILE NO/S:	Appeal No 10001 of 2002 DC No 222 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Application for Stay of Execution Application for Security for Costs
ORIGINATING COURT:	District Court at Cairns
DELIVERED EXTEMPORE ON:	7 November 2002
DELIVERED AT:	Brisbane
HEARING DATE:	7 November 2002
JUDGE:	Davies JA
ORDER:	1. Dismiss the application by the applicant for a stay of enforcement of the judgment dated 31 May 2002. 2. The applicant to provide security for costs of her proposed appeal within 14 days of paying into Court or otherwise securing to the satisfaction of the Registrar the sum of $7,000, failing which any application for leave to appeal and any appeal will stand dismissed with costs. 3. The costs of these applications will be costs in the appeal.
CATCHWORDS:	APPEAL AND NEW TRIAL - APPEAL-PRACTICE AND PROCEDURE - QUEENSLAND - STAY OF PROCEEDINGS - where the respondent bank obtained default judgment against the applicant - where the applicant has admitted to owing the respondent bank a debt - where the application for leave to appeal and the appeal have little prospect of success - whether a stay of enforcement of the judgment should be granted APPEAL AND NEW TRIAL - APPEAL-PRACTICE AND PROCEDURE - QUEENSLAND - SECURITY FOR COSTS - WHEN REFUSED - where the respondent bank obtained default judgment against the applicant - where the applicant has admitted to owing a the respondent bank a debt - where the application for leave to appeal and the appeal have little prospect of success - whether the applicant should be ordered to provide security for costs of her appeal *District Court of Queensland Act* 1967 (Qld), s 118 Carr v Finance Corporation of Australia (1981) 147 CLR 246, considered
COUNSEL:	The applicant appeared on her own behalf J Jacobs (Cairns) for the respondent
SOLICITORS:	The applicant appeared on her own behalf A J Mullumby for the respondent