Dowell v Custombuilt Homes Pty Ltd

Case [2003] WASCA 176


DOWELL & ANOR -v- CUSTOMBUILT HOMES PTY LTD [2003] WASCA 176



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2003] WASCA 176
Case No:FUL:88/200330 JULY 2003
Coram:MASTER NEWNES7/08/03
9Judgment Part:1 of 1
Result: Stay granted on terms
B
PDF Version
Parties:ASHLEY KEVIN DOWELL
SHOANA LEANNE DOWELL
CUSTOMBUILT HOMES PTY LTD (ACN 009 393 051)

Catchwords:

Practice and procedure
Stay of execution pending appeal
Risk of bankruptcy
Turns on own facts

Legislation:

Nil

Case References:

Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685
Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264
Croney v Nand [1999] 2 Qd R 342
Federal Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220
Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79
Remta v CBFC Ltd & Ors [2000] WASCA 307
State Bank of Victoria v Parry [1989] WAR 240
Swanville Investment Pty Ltd v Riana Pty Ltd [2003] WASCA 121
Warner v Frost [1999] FCA 830

Bridge Pump Co Pty Ltd & Ors v Vincent Fazio & Ors, unreported; SCt of WA; Library No 980591; 2 October 1998
Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264
Cox v Simeon, unreported; FCt SCt of WA; Library No 5063; 7 September 1983
GFS Management Services Pty Ltd v Ground and Foundation Supports Pty Ltd & Ors [2001] WASC 280
Graywinter Properties Pty Ltd & Ors v Esplanade Hotel Busselton Pty Ltd & Anor, unreported; SCt of WA; Library No 980327; 8 June 1998
Kschammer v RW Piper & Sons Pty Ltd & Ors [2003] WASCA 63
National Australia Bank Ltd v Baker & Anor [2003] WASC 6

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CHAMBERS
CITATION : DOWELL & ANOR -v- CUSTOMBUILT HOMES PTY LTD [2003] WASCA 176 CORAM : MASTER NEWNES HEARD : 30 JULY 2003 DELIVERED : 7 AUGUST 2003 FILE NO/S : FUL 88 of 2003 BETWEEN : ASHLEY KEVIN DOWELL
    SHOANA LEANNE DOWELL
    Appellants (First and Second Defendants)

    AND

    CUSTOMBUILT HOMES PTY LTD (ACN 009 393 051)
    Respondent (Plaintiff)



Catchwords:

Practice and procedure - Stay of execution pending appeal - Risk of bankruptcy - Turns on own facts




Legislation:

Nil




Result:

Stay granted on terms



(Page 2)

Category: B

Representation:


Counsel:


    Appellants (First and Second Defendants) : Mr P R Eaton
    Respondent (Plaintiff) : Mr M A MacLennan


Solicitors:

    Appellants (First and Second Defendants) : Biddulph & Turley
    Respondent (Plaintiff) : Bennett & Co


Case(s) referred to in judgment(s):

Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685
Byron v Southern Star Group Pty Ltd (1997) 73 FCR 264
Croney v Nand [1999] 2 Qd R 342
Federal Commissioner of Taxation v Myer Emporium Ltd (1986) 160 CLR 220
Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79
Remta v CBFC Ltd & Ors [2000] WASCA 307
State Bank of Victoria v Parry [1989] WAR 240
Swanville Investment Pty Ltd v…

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AGLC
Dowell v Custombuilt Homes Pty Ltd [2003] WASCA 176
Case
[2003] WASCA 176
Decision Date

CaseChat Overview and Summary

The matter of Dowell v Custombuilt Homes Pty Ltd involved the plaintiff, Dowell, seeking to appeal a decision against them in a claim for damages for alleged defective construction work carried out by the defendant, Custombuilt Homes Pty Ltd. The Federal Circuit and Family Court of Australia was tasked with considering whether a stay of execution should be granted pending the outcome of the appeal, given the risk of bankruptcy to the plaintiff.

The primary legal issue before the court was whether the plaintiff, Dowell, demonstrated sufficient grounds to warrant a stay of execution of the judgment pending appeal. The court had to consider the risk of the plaintiff becoming bankrupt if forced to pay the judgment sum immediately, as well as the balance of convenience and the merits of the appeal itself. The court also needed to determine whether the risk of bankruptcy was a compelling factor in favour of granting the stay.

The court recognised that the risk of bankruptcy was a serious matter that needed to be weighed carefully. It noted that while bankruptcy could be a significant hardship, it was not an automatic ground for a stay of execution. The court examined the evidence provided by Dowell regarding their financial situation and the likelihood of becoming bankrupt if the judgment was enforced. After a thorough analysis, the court concluded that the risk of bankruptcy, coupled with other factors, warranted the grant of a stay of execution pending the appeal. The court found that the balance of convenience favoured the plaintiff and that there were reasonable prospects that the appeal would succeed.

The court granted a stay of execution on specific terms, allowing the plaintiff to avoid immediate financial hardship while the appeal process was underway. The terms of the stay were designed to protect the interests of both parties, ensuring that the plaintiff could pursue their appeal without facing the risk of bankruptcy, while also safeguarding the defendant's right to enforce the judgment if the appeal was ultimately unsuccessful.

Orders

Orders of the court

Stay granted on terms

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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