Duckworth v Commonwealth Bank of Australia
[2013] WASCA 24
DUCKWORTH -v- COMMONWEALTH BANK OF AUSTRALIA [2013] WASCA 24
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASCA 24 | |
| THE COURT OF APPEAL (WA) | 05/02/2013 | ||
| Case No: | CACV:161/2012 | 10 JANUARY 2013 | |
| Coram: | PULLIN JA | 10/01/13 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | FRANCES ANN DUCKWORTH COMMONWEALTH BANK OF AUSTRALIA |
Catchwords: | Appeal Practice and procedure Application for stay of judgment Application dismissed Turns on own facts |
Legislation: | Nil |
Case References: | Commonwealth Bank of Australia v Duckworth [2012] WASC 476 Duckworth v Water Corporation [2012] WASC 30 Duckworth v Water Corporation [No 2] [2012] WASC 163 Eastland Technology v Whisson [2003] WASCA 307; (2003) 28 WAR 308 Inglis v Commonwealth Trading Bank of Australia [1972] HCA 74; (1972) 126 CLR 161 Maguire v Makaronis [1997] HCA 23; (1997) 188 CLR 449 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : DUCKWORTH -v- COMMONWEALTH BANK OF AUSTRALIA [2013] WASCA 24 CORAM : PULLIN JA HEARD : 10 JANUARY 2013 DELIVERED : 10 JANUARY 2013 PUBLISHED : 5 FEBRUARY 2013 FILE NO/S : CACV 161 of 2012 BETWEEN : FRANCES ANN DUCKWORTH
- Appellant
AND
COMMONWEALTH BANK OF AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
Citation : COMMONWEALTH BANK OF AUSTRALIA -v- DUCKWORTH [2012] WASC 476
File No : CIV 1811 of 2010
(Page 2)
Catchwords:
Appeal - Practice and procedure - Application for stay of judgment - Application dismissed - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms C H Thompson
Solicitors:
Appellant : In person
Respondent : Gadens Lawyers
Case(s) referred to in judgment(s):
Commonwealth Bank of Australia v Duckworth [2012] WASC 476
Duckworth v Water Corporation [2012] WASC 30
Duckworth v Water Corporation [No 2] [2012] WASC 163
Eastland Technology v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Inglis v Commonwealth Trading Bank of Australia [1972] HCA 74; (1972) 126 CLR 161
Maguire v Makaronis [1997] HCA 23; (1997) 188 CLR 449
(Page 3)
1 PULLIN JA: This is an application for a stay of judgment of Master Sanderson. By the judgment, the master ordered the appellant to pay the respondent $2,951,402.95 together with interest, ordered that the appellant give possession to the respondent of a property at 9 Clarecastle Retreat, Mindarie, and ordered the appellant to pay costs. After hearing oral submissions, the application for a stay was dismissed with reasons to be published later. These are the reasons.
2 A stay will not be granted unless special circumstances are shown: see s 15 of the Civil Judgments Enforcement Act 2004 (WA) and Eastland Technology v Whisson [2003] WASCA 307; (2003) 28 WAR 308. This usually requires that the applicant for a stay or suspension order demonstrate that, if the stay or suspension order is not granted, the appeal will be rendered nugatory or there will be practical difficulties in respect of the relief which may be granted if the appeal succeeds. However, the application will still be dismissed if the applicant does not demonstrate that there are reasonable prospects that the appeal will succeed. Even if that can be shown, the balance of convenience may favour dismissal of the application.
3 In addition, this is a mortgage action. The general rule is that a stay will not be granted in circumstances where the mortgage debt has not been paid or paid into court: Inglis v Commonwealth Trading Bank of Australia [1972] HCA 74; (1972) 126 CLR 161, 164. The debt has not been paid.
4 The judgment was entered after a trial. The master had a very poor view of the evidence given by the appellant and her husband. There was little or no argument about the respondent's case. The appellant put forward a defence, claiming inter alia that the transaction with the bank should be set aside. The defence failed. See the master's reasons: Commonwealth Bank of Australia v Duckworth [2012] WASC 476.
5 There is no doubt that the appeal will be rendered nugatory if a stay is not granted because it is likely that, by the time the appeal is heard, the property will have been sold and will not be recoverable. However, this is tempered by the fact that, even if the appellant succeeded on the appeal and had the transaction set aside, the appellant would still be required to pay the principal sum and interest at a reasonable rate: see Maguire v Makaronis [1997] HCA 23; (1997) 188 CLR 449, 475 - 476. Save for one point which is discussed at the end of these reasons, there was no evidence that the appellant has any means of paying or reducing the debt or repaying the principal and interest other than by sale of the property.
(Page 4)
6 The appellant has not demonstrated that she has any reasonable prospect of success in the appeal. The appellant has not filed the appellant's case, and therefore there are no grounds of appeal before the court. The appellant did not proffer any draft grounds of appeal.
7 The balance of convenience favours the refusal of a stay because the judgment sum plus interest now exceeds $3.4 million and the property is valued at less than that. Any delay will prejudice the respondent because any amount over and above the amount recovered from the sale of the property is not likely to be recovered.
8 The other significant factor militating against the grant of a stay is that the appellant has not paid the judgment sum into court: see Inglis.
9 The appellant did claim that she would soon be in a position to pay the debt. When pressed to explain this, she said that the funds would be from a claim her husband was bringing against the Water Corporation for repayment of a bond. She contended that the claim was for an amount of $3 million (although her husband, who was sitting behind her, was heard to suggest that the claim was for $3.8 million). Even if this claim succeeded, it would not clear the full amount due under the judgment. There was no evidence in support of an assertion by the appellant from the bar table that the amount claimed from the Water Corporation would be paid soon (the appellant contended that it would be paid within three weeks). Two decisions of Edelman J concerning this claim suggest otherwise. They are Duckworth v Water Corporation [2012] WASC 30 and Duckworth v Water Corporation[No 2] [2012] WASC 163. By the first decision, Edelman J explained that Mr Duckworth's action was stayed by s 60(2) of the Bankruptcy Act 1966 (WA) because he had become a bankrupt after commencing the action. Mr Duckworth's trustee in bankruptcy elected, under s 60(2) of the Bankruptcy Act, to discontinue the action. On 22 March 2012, Edelman J made orders discontinuing the action: see Duckworth [No 2] [5]. Mr Duckworth then applied to reinstate the proceedings. That application was dismissed for the reasons given by Edelman J in Duckworth [No 2].
10 Neither of those decisions gives rise to any confidence that Mr Duckworth is to receive between $3 million and $4 million from the Water Corporation in the near future.
11 For all of those reasons, the application for a stay was dismissed.
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