Feilman Planning Consultants Pty Ltd v Love

[2001] WADC 47

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   FEILMAN PLANNING CONSULTANTS PTY LTD
-v- LOVE [2001] WADC 47

CORAM:   MARTINO DCJ

HEARD:   20 DECEMBER 2000, 8 & 19 FEBRUARY 2001

DELIVERED          :   Delivered Extemporaneously on 19 FEBRUARY 2001 typed from tape and edited by Trial Judge

FILE NO/S:   CIV 4229 of 1999

BETWEEN:   FEILMAN PLANNING CONSULTANTS PTY LTD

Plaintiff

AND

ROSS MAITLAND LOVE
Defendant

Catchwords:

Procedure - Stay of execution of judgment - Jurisdiction - Discretion

Legislation:

Nil

Result:

Stay granted

Representation:

Counsel:

Plaintiff:     Mr M E Herron

Defendant:     Mr C B Edmonds (on 20.12.00)

& Mr G J Coad (on 8.2.01 & 19.02.01)

Solicitors:

Plaintiff:     Gibson & Gibson

Defendant:     Geoffrey Coad

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

Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79

State Bank of Victoria v Parry & Ors [1989] WAR 240

Case(s) also cited:

Berliner Industriebank Aktiengesellschaft v Jost [1971] 2 All ER 1513

Clifton Securities Ltd v Huntley & Ors [1948] 2 All ER 283

The Commissioner of Taxation of the Commonwealth of Australia v Myer Emporium Ltd [No 1] (1986) 160 CLR 220

1. MARTINO DCJ:  This is the defendant's application for a stay of execution pending the hearing of an appeal against summary judgment granted by Deputy Registrar Hewitt in the plaintiff's favour.  The plaintiff provided town planning and similar services to the defendant and the plaintiff's claim against the defendant is for fees for those professional services.  On 9 March 2000 Deputy Registrar Hewitt delivered reasons why he would grant summary judgment in the plaintiff's favour.  The terms of the judgment were not finalised until October 2000 and so judgment was not entered until then.

2. The defendant contends that he has a counterclaim against the plaintiff for damages for professional negligence in failing to advise on and pursue a claim for compensation in respect of the land upon which the plaintiff was providing services.  The defendant contends that that counterclaim constitutes a defence to the plaintiff's claim, that the appeal is likely to succeed and if so the summary judgment will be set aside.

3. The defendant applies for the stay under both limbs of O 47 r 13; that is, firstly, the limb in O 47 r 13(1)(a) that by reason of special circumstances it is inexpedient to enforce a judgment or order, and under O 47 r 13(1)(c) that the judgment is for payment of money and the applicant is unable from any cause to pay the money.  In relation to the second limb, the plaintiff has sworn an affidavit on 14 February 2001 giving details of his assets and liabilities.

4. It is quite clear from that affidavit the defendant does have real property which he could sell to meet the judgment and, in my view, the requirements of O 47 r 13(1)(c) are not made out.

5. I turn then to O 47 r 13(1)(a).  The essence of the defendant's claim is that special circumstances exist because the plaintiff has no assets and it is likely that if the judgment sum is paid that the appeal will be rendered nugatory because the defendant will not be able to recover back from the plaintiff the moneys that have been paid.

6. That is what might be called the jurisdictional test as to whether or not the defendant has satisfied me that by reason of that special circumstance it is inexpedient to enforce the judgment or order.

7. This matter has been before me on three occasions:  20 December 2000, 8 February 2001 and today.  The plaintiff has been given the opportunity to file affidavits challenging the information contained in the affidavit of the defendant sworn 19 December 2000 in which he deposes that the plaintiff is a company of minimal capital and that it is not carrying on business, and a further affidavit sworn by the defendant on 5 February 2001 which annexes a page in the phone book which shows that the entry for the plaintiff refers the reader to another company.

8. The plaintiff has filed an affidavit of Mr Sleight dated 22 December 2000.  He is the accountant of the plaintiff, but that affidavit gives no information about the financial position of the plaintiff.  It does assert the plaintiff is still carrying on business but the plaintiff has chosen not to answer the defendant's affidavit sworn on 5 February 2001 annexing that page from the phone book.  I therefore draw the inference from the failure of the plaintiff to deal with these issues that there is a substantial risk that if the moneys are paid the appeal will be rendered nugatory because they were not to be recovered.

9. The jurisdictional test having been satisfied, it is now necessary for me to consider the exercise of my discretion and the parties have referred me to the judgment of Anderson J in Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79, and particularly the passage at p 90 where his Honour has referred to four matters, first, whether there was a substantial prospect that the appeal will succeed, secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending, thirdly, whether the grant of stay will cause loss to the respondent and, fourthly, where the balance of convenience lies.

10. As to the prospects of the appeal succeeding, the nature of the counterclaim for damages is closely linked to the services rendered by the plaintiff to the defendant and, having regard to the principles of equitable counterclaim as explained by Malcolm CJ in State Bank of Victoria v Parry & Ors [1989] WAR 240 at 246, there is a good argument that the plaintiff has an equitable set‑off.

11. That argument may well be sufficient for this appeal, bearing in mind two things.  Firstly, the appeal is a hearing de novo, secondly, the plaintiff's application is an application for summary judgment.  It is not a matter that has yet gone to trial.

12. The second matter is whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending and, essentially, the plaintiff there points to the delays of the defendant.  There is no doubt that there are significant delays and that is a matter that I take into account in the exercise of my discretion but it seems to me that is closely tied to where the balance of convenience lies which is a matter I will deal with shortly.

13. Thirdly, whether the grounds of stay will cause loss to the respondent.  The respondent, in this case the plaintiff, will be without its money but it does still continue to accrue interest if the appeal is unsuccessful and there are pieces of real estate over which the defendant has lodged writs of fi fa so the grant of stay would not cause significant loss to the respondent.

14. The fourth matter is where the balance of convenience lies.  The balance of convenience is, on one hand, preserving the status quo, on the other hand, allowing the plaintiff to instruct the sheriff to sell land under the writs of fi fa.  It seems to me that the balance of convenience lies with the granting of a stay.  I bear in mind that the appeal has not been pressed expeditiously.  I propose to deal with that by giving liberty to apply to set aside the stay and if the appeal is not pressed expeditiously then the plaintiff can make such an application.

15. If any further specific directions are requested by the plaintiff as far as the pursuit of the appeal is concerned then I would be willing to hear submissions as to that.  I have decided, therefore, that I should grant a stay until the appeal is heard.

16. The defendant also asks for an order lifting a writ of fi fa on one piece of land that he proposes to sell, on which he has entered into a contract of sale and upon which a default notice has been issued because he cannot achieve settlement.

17. I have raised with the defendant during the hearing that I am concerned that I do not have power to make such an order.  The defendant has made submissions that I have power to make orders which are reasonably necessary to implement or give effect to the order for a stay but it does not seem to me that  I have any power to order that the writs of fi fa be lifted because what I am doing is granting a stay to preserve the status quo, not a stay to enable the defendant to dispose of assets.  As the orders I am making are to preserve the status quo I have decided, both in terms of jurisdiction and in terms of discretion that I should not order that the writ of fi fa be lifted.