Delmenico v. Brannelly & Ors

[2007] QDC 244

DISTRICT COURT OF QUEENSLAND

CITATION:

Delmenico v Brannelly & Ors [2007] QDC 244

PARTIES:

JAMES DELMENICO

(Plaintiff)

AND

PAUL A BRANNELLY

(First Defendant)

AND

BRANNELLY FINANCIAL PTY LTD (ABN 72 011 021 640)

(Second Defendant)

AND

DEAKIN FINANCIAL SERVICES PTY LTD (ABN 98 084 676 872)

(Third Defendant)

FILE NO/S:

BD1917/06

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

10 October 2007

DELIVERED AT:

Brisbane

HEARING DATE:

9 October 2007

JUDGE:

Koppenol DCJ

ORDER:

1.   Upon the undertaking provided in paragraph 8 in the affidavit by Mr Delmenico filed on 4 October 2007 this application is dismissed.

2.   The applicant is to pay the costs of and incidental to this application to be assessed on the standard basis. 

3.   Liberty to apply on three days notice.

CATCHWORDS:

STAY OF ENFORCEMENT OF JUDGMENT – Appropriate case for a stay to be granted – Fundamental right to judgment

Uniform Civil Procedure Rules 1999 (Qld ) r761

Croney v Nand [1999] 2 Qd R 342 (CA) – Applied

Dwan v Farquhar [1988] 1 Qd R 234 – Applied

JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 1) [1983] 2 Qd R 243 – Considered

JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255 - Considered

McBride v Sandland (1918) 25 CLR 369 – Considered

COUNSEL:

Mr R.A. Perry SC for the Defendant

Mr F.G. Forde for the Applicant

SOLICITORS:

Quinn and Scattini for the Plaintiffs

Clarke Kann for the Defendants

1. This is an application under UCPR r 761(2) by the first and second defendants for a stay of enforcement of a judgment subject to appeal. The application was heard yesterday.

1. On 9 August 2007, the respondent/plaintiff obtained judgment against the applicants/defendants in the District Court for $114,736.62, following a contested hearing in which the applicants (a financial adviser and his company) were held to have acted negligently and in a misleading and deceptive manner when providing financial advice to the respondent.

1. On 6 September 2007, the applicants filed a notice of appeal to the Court of Appeal against the judgment.

1. On a stay application under UCPR r 761, an applicant must show that (a) it has an arguable case on appeal, and (b) the case was appropriate for a stay to be granted: Croney v Nand [1999] 2 Qd R 342 (CA).

1. In the present case, it was common ground that the applicants have an arguable case on appeal.  The parties differed, however, as to whether this was an appropriate case for a stay to be granted.

1. The applicants submitted that if they paid the judgment debt, there is doubt as to whether they would be able to recover that money if the appeal was successful.  They also offered an undertaking to pay the respondent’s interest on the loan to make the investment the subject of the judgment until the appeal is concluded.  That was said to completely protect the respondent from any prejudice.

1. Mr Forde of counsel for the respondent drew attention to his client’s fundamental right to the fruits of his judgment:  McBride v Sandland (1918) 25 CLR 369, 374. He also emphasised the statement of Master Lee QC (as he then was) in JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 1) [1983] 2 Qd R 243, 249C, that in the absence of affidavit material as to a respondent’s financial position, the court must assume that if the judgment moneys are paid over to the respondent and the appeal is successful, the applicant will be able to get it back. A similar approach was adopted by the Full Court in the same case: JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255, 256B, 259B-D.

1. Although the respondent was not obliged to put on any evidence on this application, he filed an affidavit which relevantly said that (a) he borrowed the $100,000 to make the investment the subject of this action via a credit drawdown facility secured on his and his wife’s home at Bardon (which they purchased three years ago for $750,000), and (b) if paid the judgment owed, he will pay off the $100,000 borrowed plus interest, but undertakes not to sell, transfer or encumber their house or further draw down the line of credit until the appeal is concluded.

1. Mr Perry SC for the applicants submitted that because no evidence of the line of credit maximum or current drawdown figure or house valuation were provided, there was no evidence that the judgment amount would be recoverable it if were paid now and the appeal was successful.

1. Whilst I accept that contention, I do not think that it ultimately leads anywhere.  Although an affidavit may be “significant for what it does not say as much for what it does say” (see Dwan v Farquhar [1988] 1 Qd R 234, 238.5), to my mind the respondent’s affidavit was not an attempt to detail his financial position in the JC Scott‑sense.  Rather, I regard that affidavit as endeavouring to briefly detail, for purposes of the present application, the nature of the subject loan and how the respondent intends to deal with it, the credit facility and his house, if the judgment amount is paid.  Importantly, no authority was cited where a respondent/judgment creditor’s position was regarded as being weakened in a stay application because it was intended to pay the judgment amount to a third person—as is the case here.

1. On that basis, the applicants have not satisfied me that the respondent’s financial position is such that if the judgment moneys are paid over to the respondent and the appeal is successful, the applicant will not be able to get it back.  It follows that this is not an appropriate case for a stay to be granted and the application must therefore be dismissed.