Culleton v Dakin Farms Pty Ltd
[2016] WASCA 152
•29 AUGUST 2016
CULLETON -v- DAKIN FARMS PTY LTD [2016] WASCA 152
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASCA 152 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:35/2016 | 25 AUGUST 2016 | |
| Coram: | NEWNES JA MURPHY JA | 29/08/16 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | IOANNA CULLETON DAKIN FARMS PTY LTD BALWYN NOMINEES PTY LTD |
Catchwords: | Practice and procedure Appeal against stay application decision Turns on own facts No basis upon which enforcement of primary judgment might properly be suspended |
Legislation: | Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i) |
Case References: | Culleton v Dakin Farms Pty Ltd [2015] WASCA 183 Dakin Farms Pty Ltd v Elite Grains Pty Ltd [No 2] [2013] WADC 160 Mavaddat v HSBC Bank Australia Ltd [2015] WASCA 205 Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : CULLETON -v- DAKIN FARMS PTY LTD [2016] WASCA 152 CORAM : NEWNES JA
- MURPHY JA
- Appellant
AND
DAKIN FARMS PTY LTD
BALWYN NOMINEES PTY LTD
Respondents
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : TROY DCJ
File No : CIV 2787 of 2011
Catchwords:
Practice and procedure - Appeal against stay application decision - Turns on own facts - No basis upon which enforcement of primary judgment might properly be suspended
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : Mr J R Reynolds
Respondents : No appearance
Solicitors:
Appellant : Nova Legal
Respondents : No appearance
Case(s) referred to in judgment(s):
Culleton v Dakin Farms Pty Ltd [2015] WASCA 183
Dakin Farms Pty Ltd v Elite Grains Pty Ltd [No 2] [2013] WADC 160
Mavaddat v HSBC Bank Australia Ltd [2015] WASCA 205
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168
1 REASONS OF THE COURT: This matter came before the court on 25 August 2016, pursuant to a registrar's notice to attend for the appellant to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules), on the basis that none of the grounds of appeal has a reasonable prospect of succeeding. The first return date for the appellant to show cause was 19 August 2016. The matter was not heard that day, and was made returnable by further notice dated 18 August 2016, on 'Friday', 25 August 2016. Twenty five August 2016 was a Thursday, but Mr Reynolds, who appeared for the appellant at the hearing on 25 August 2016, did not contend that any difficulty was caused by the reference on the 18 August 2016 notice to the wrong day but the correct date. Mr Reynolds said, in effect, that he had only recently met with the appellant and had not obtained the necessary instructions to deal with the matter; that it would not assist him if the matter were stood over until the next day, although if the matter were adjourned for a week, he thought he would be in a 'better position'; and that the appellant was not available to appear on her own behalf either on 25 or 26 August 2016. Given that a show cause notice had first been issued seven weeks earlier (on 7 July 2016), and in the absence of an application by the appellant supported by an affidavit seeking an adjournment, there was no proper basis for the matter to be adjourned.
2 We dismissed the appeal that day and said we would subsequently provide reasons. These are our reasons.
The decision under appeal - the stay application decision
3 The appeal was brought by the appellant (Mrs Culleton) against the decision of Troy DCJ delivered extemporaneously in CIV 2787 of 2011 on 14 April 2016 (stay application decision). In that decision his Honour dismissed an application dated 13 November 2015 (stay application) by Mrs Culleton for an order to suspend the enforcement of all or part of the judgment against her in Dakin Farms Pty Ltd v Elite Grains Pty Ltd [No 2]1 (primary decision). The primary decision was handed down on 24 October 2013.
The primary proceedings and the property seizure and sale order
4 The primary proceedings had been commenced by the present respondents (Balwyn Nominees Pty Ltd (Balwyn) and Dakin Farms Pty Ltd (Dakin))andconcerned a written agreement entered between Balwyn and Mr and Mrs Culleton (the Culletons) on 16 December 2009 by which, in general terms, the Culletons agreed to lease and purchase certain land from Balwyn (2009 agreement). The trial judge (Curthoys DCJ) found that the Culletons were liable to Balwyn for damages arising out of the repudiation of the 2009 agreement and awarded damages in the sum of $205,536.50, together with interest of 6% per annum from 1 March 2011 until judgment on 24 October 2013.
5 A property seizure and sale order was subsequently made against Mrs Culleton on 14 November 2013. This order was extended on 10 November 2014 and again on 12 November 2015 to 13 November 2016.
The appeal against the primary decision
6 Mr and Mrs Culleton filed a notice of appeal against the primary decision. The appeal was heard on 11 May 2015 and dismissed on 8 September 2015: Culleton v Dakin Farms Pty Ltd (appeal decision).2
The stay application decision
7 Mrs Culleton filed written submissions in support of the stay application in the District Court on 15 January 2016. Mrs Culleton submitted, in effect, that at all material times she was a non-party to the 2009 agreement and was only acting as an agent for Mr Culleton. She submitted that the proper parties to the 2009 agreement were Balwyn and Elite Grains Pty Ltd (Elite Grains). The inclusion of Mrs Culleton's name on the 2009 agreement was, she said, a 'mere formality signifying [her] Duties as Wife [of Mr Culleton]'.3 She also submitted that Mr Culleton had been denied natural justice and that the appeal decision was therefore void. She alleged that Mr Culleton's appeal was wrongfully dismissed on the ground of an alleged 'deemed abandonment of the Claim' and alleged extinguishment of the 'underlying claim by creating a res judicata'.4
8 In oral submissions, Mrs Culleton also said, in effect, that she was not, in any real sense, a party to the proceedings in the primary decision or the appeals,5 and that she had applied for special leave to appeal to the High Court against the appeal decision.6
9 Mrs Culleton filed a number of affidavits referred to by Troy DCJ. First, the stay application was supported by an affidavit made and filed by Mrs Culleton on 13 November 2015. According to Troy DCJ, the affidavit contained a form 7 application dated 30 October 2015 for a new trial under s 59 of the Supreme Court Act 1935 (WA) and for a review of the primary decision against Mr Culleton (new trial application), and a pro forma application in an appeal dated 22 October 2015 addressed to the Court of Appeal submitting, in part, that the Court exceeded its jurisdiction rendering the appeal decision null and void.7 On application by Balwyn and Dakin, the affidavit was sealed by the court, with access to it only on orders of a judge on notice to the second judgment creditor. The judge also referred to an affidavit of Mrs Culleton and her husband in support of an application in an appeal dated 23 October 2015, and two further affidavits sworn by Mrs Culleton on 23 March 2016 and 13 April 2016.8
10 The stay application was listed for hearing on 11 April 2016. After hearing argument by the parties, Troy DCJ adjourned the hearing to 14 April 2016. The adjournment was to allow Mrs Culleton to obtain further materials in relation to her contentions concerning an application to the High Court for special leave to appeal from the appeal decision, and the contention that she was not a party represented by counsel at that appeal.9
11 In the course of the hearing before Troy DCJ, Mrs Culleton accepted that the filing fee in the High Court had not been paid, and that she had not filed a written case.10
12 In an extemporaneous decision delivered on 14 April 2016, Troy DCJ made the following findings:
(a) there was no doubt that the litigation in this matter was conducted on the basis that Mrs Culleton was a party to the 2009 agreement;11
(b) there was no doubt that the primary judgment was a judgment against Mrs Culleton;12
(c) Mrs Culleton was represented by counsel at the appeal hearing;13
(d) Mrs Culleton's application for special leave to appeal to the High Court had been deemed to be abandoned pursuant to r 41.10.4.1 of the High Court Rules 2004 (Cth) for failure to file a written case;14 and
(e) the new trial application, annexed to the 15 November 2015 affidavit, was misconceived and had no prospect of success.15
13 With respect to the application for a suspension order, his Honour concluded:16
This is not a case, in my view, where a grant of a stay is necessary to preserve the subject matter or the integrity of the litigation or [where] a refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal.
Further, for the reasons I have stated, Mrs Culleton has not established that an appeal has ultimately reasonable prospects of success because (1) in my view the only possible avenue of appeal is taken to have been abandoned and (2) I am completely unconvinced of the merits of any such appeal. It is not necessary to consider where the balance of convenience lies.
In short, there are no special circumstances that justify suspending the order made on 12 November 2015 that the property seizure and sale order against Mrs Culleton dated 14 November 2013 as extended and amended by orders made by Registrar Harman on 10 November 2014 be extended to 13 November 2016.
Accordingly, Mrs Culleton's application is dismissed.
Mrs Culleton's appeal against the stay application decision
14 Mrs Culleton filed the notice of appeal herein on 5 May 2016. She filed an appellant's case on 24 June 2016. The appellant's case named Elite Grains as the second appellant, although that company was not named in the notice of appeal. In the appellant's case, it is alleged, in effect, that Troy DCJ erred in both fact and law:
1. By refusing to act on the trial judge's finding in the primary decision that: 'Rodney Culleton was a director of Elite Grains. His wife, Ionna, acted on behalf of Elite Grains. There is no dispute that at all times Mr and Mrs Culleton acted on behalf of Elite Grains'17 (par 7 finding).
2. By refusing to find that the par 7 finding was a special circumstance under s 15(3) of the Civil Judgments Enforcement Act 2004 (WA) (CJEA) warranting a suspension order.
3. By refusing to acknowledge that s 15(3) of the CJEA endowed power upon him to award the suspension order and enlivened his jurisdiction to decide the matter.
4. By considering the 'irrelevant issue' of whether or not Mrs Culleton had appealed the appeal decision to the High Court of Australia.
15 Mrs Culleton submitted, in effect, that once the above errors are recognised, Troy DCJ ought to have granted a suspension order and that he should have referred:
the matter to a single Judge of the Supreme Court of Western Australia for the determination of the proposition that the case be and is re-opened pursuant to the Grierson principle of the [High Court] and subs.58(l) and 59(3) of the Supreme Court Act, 1935 as a special case where all parties have agreed (and indeed) that the same be heard before the Court of Appeal pursuant to the First Appellant's Application in an Appeal in CACV 130 of 2013 dated 26.4.2016 (the Application) in a new trial (the New Trial)'.
16 As to this second point, Mrs Culleton submitted that a Court of Appeal registrar had 'subsequently agree[d]' to the new trial.
Disposition
17 The principles relevant to granting a stay are well known: Tradesman Technologies Pty Ltd v Ameduri;18Mavaddat v HSBC Bank Australia Ltd.19 The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or integrity of the litigation, or whether a refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal.
18 At the hearing on 11 April 2016, Troy DCJ explained to Mrs Culleton that:20
it is pivotal to any prospect you have of success to be able to establish that something has been done in relation to appealing to the High Court. That is by no means determinative, but it's a necessary prerequisite for me to entertain your application.
19 After reviewing all the materials, Troy DCJ concluded that Mrs Culleton had exhausted the appeal process. His Honour found that the only possible avenue of appeal, being an application for special leave to appeal to the High Court, had been abandoned and that the merits of any such appeal were unconvincing.21
20 His Honour was plainly correct. The appeal filed by Mrs Culleton against Troy DCJ's decision was misconceived and had no reasonable prospects of success.
21 Mrs Culleton was a party to the primary proceedings and bound by the judgment against her. Her appeal to this court was dismissed. Any subsequent application by Mrs Culleton to the High Court has been abandoned. None of these matters were challenged in the grounds of appeal, and even if they had been, they are not reasonably contestable in the circumstances. All avenues of appeal against the primary decision having been exhausted, there was no basis upon which its enforcement might properly be suspended.
22 For these reasons, we dismissed Mrs Culleton's appeal herein pursuant to r 43(2)(g)(i) of the Court of Appeal Rules.
1Dakin Farms Pty Ltd v Elite Grains Pty Ltd [No 2] [2013] WADC 160.
2Culleton v Dakin Farms Pty Ltd [2015] WASCA 183.
3 Outline of written submissions by judgment debtor in CIV 2787 of 2011, par 6.
4 Outline of written submissions by judgment debtor in CIV 2787 of 2011, par 16.
5 ts 950 - 951.
6 ts 945 - 947.
7 ts 1007.
8 The District Court file only appears to contain the affidavits filed 13 November 2015 and 23 March 2016. The affidavit in support of an appeal dated 23 October 2015 was said to be enclosed within the 13 November 2015 affidavit, which remains sealed. The 13 April 2016 affidavit does not appear to be on the District Court file.
9 ts 974 - 975.
10 ts 996.
11 ts 1011.
12 ts 1009.
13 ts 1012.
14 ts 1011.
15 ts 1017 - 1018.
16 ts 1018 - 1019.
17 Primary decision [7].
18Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 [22].
19Mavaddat v HSBC Bank Australia Ltd [2015] WASCA 205 [20].
20 ts 971.
21 ts 1019.
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