Double Time Pty Ltd T/a G I Motors v Chiwei

[2000] QCA 527

[2000] QCA 527

COURT OF APPEAL

McMURDO P

Appeal No 10320 of 2000

DOUBLE TIME PTY LTD TRADING
AS G I MOTORS  Applicant (Appellant)

v.

TSAU CHIWEI  Respondent (Respondent)

BRISBANE

..DATE 22/12/2000

JUDGMENT

THE PRESIDENT: On 7 April 2000 in the Magistrates Court, upon an application brought by Constable Ryan under section 39 Justices Act 1886 the applicant was ordered to deliver a Subaru motor vehicle to the respondent, Mr Tsau Chiwei, the person appearing to the Court to be the owner of the vehicle.

The applicant appealed to a District Court Judge under section 222 Justices Act 1886 of the Act but the application was dismissed because the appellant neglected to enter into a recognisance within the time frame set out in section 222(a)(ii) of the Act. The Judge also set aside the order staying the order of the Magistrate.

The applicant seeks leave to appeal against the District Court Judge's order dismissing the appeal under section 118 District Court Act 1967. Today the applicant seeks a stay pending the hearing of the application for leave to appeal which is listed on 20 February 2001.

For the purposes of this application I am prepared to accept that the applicant has an arguable case.  The discretion to order a stay is only exercised where special circumstances exist which justify the departure from the ordinary rule that successful litigants are entitled to the fruits of their litigation, here, possession of the vehicle to which the Magistrate found him entitled.

In an affidavit the applicant's solicitor states that he is informed by Mr George Ibrahim, a director of the applicant, that the applicant will be disadvantaged if the stay is not ordered as the vehicle "may diminish, perhaps greatly, in value (through theft, damage or otherwise) if released to Mr Tsau Chiwei for his use and benefit pending the final determination of the matter".

No further particulars on this issue were provided.  The vehicle is currently securely stored by the applicant and has not been driven by the applicant or others.  I have been informed from the Bar table that Mr Ibrahim would be prepared to provide an undertaking to store the vehicle the subject of this application safely, securely and fully insured until the hearing of this application on 20 February 2001.

The respondent is a student from Taiwan whose command of English is less than perfect but who has, I think, been able to make himself understood to me and to understand me during today's proceedings.  At first he told me he was keen to have the motor vehicle returned to him because he wanted to sell it and return to Taiwan.  When I explained to him the difficulty in so doing should the applicant be successful in his appeal, he then said he would be prepared to use the car rather than sell it, to delay any return to Taiwan until after the appeal and to insure the vehicle.  Unfortunately none of this material was in affidavit form.  The respondent also pointed out to me that he had not been able to insure the vehicle in the past because he was not the registered owner but that position should change because of the Magistrate's order.

The case is not an easy one but, on balance, I am finally persuaded the applicant has established that there is a significant risk that if the vehicle were returned to Mr Chiwei then it may not be able to be returned to the applicant in its present condition should the applicant be successful on appeal.  The undertaking offered by Mr Ibrahim would seem to adequately protect the interests of the respondent.  The application for leave is to be heard early in the new year.

I order that the order of Mr Robert Quinlan SM on 7 April 2000 in the Holland Park Magistrates Court that a Subaru motor vehicle be delivered to Tsau Chiwei, as the person appearing to the Court as the owner thereof, and the order of his Honour Judge Hoath dismissing that stay be stayed until 20 February 2001, subject to Mr George Ibrahim, director of Double Time Pty Ltd trading as G I Motors undertaking to keep the Subaru motor vehicle, the subject of this application, safe and secure and fully insured until that time.

THE PRESIDENT:  You're not asking for costs?

MR FARRELL:  No, your Honour.

THE PRESIDENT:  No.  Do you understand, Mr Chiwei, what has happened.  I have, in fact, granted the application brought by the car yard and what I've allowed them to do also makes sure that you are protected because the car is fully insured and safe and secure, kept by them until the 20 February when the application for leave to appeal is to be heard.

Now, if you can, you should make sure you attend at that time and if you are unable to get somebody to help you, if you can't get legal aid you might find you might be able to get some students - law students to assist you in your case or if you go to the Caxton Legal Service they might be able to help you.  It is important that you do what you can to ensure your views are put forward at that time.  Do you understand?  Is there any questions you have?  No.  You understand what's happening?  Yes, all right then.  Thank you. 

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