Field Camp Services Pty Ltd v Site Accommodation Pty Ltd - [2011] WASCA 118

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: FIELD CAMP SERVICES PTY LTD -v- SITE ACCOMMODATION PTY LTD [2011] WASCA 118

CORAM: NEWNES JA

HEARD: 1 APRIL 2011

DELIVERED : 25 MAY 2011

FILE NO/S: CACV 105 of 2010

BETWEEN: FIELD CAMP SERVICES PTY LTD
Appellant
AND
SITE ACCOMMODATION PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :O'NEAL DCJ
File No  :CIV 346 of 2010

Catchwords:

Practice and procedure - Application for suspension of enforcement of judgment pending determination of appeal - Whether appeal has reasonable prospects of success - Whether special circumstances exist - Suspension order granted on condition that judgment sum paid into court or secured

Practice and procedure - Application for security for costs - Appropriate amount to be provided by way of security

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 15

Result:

Suspension order granted on conditions
Security for costs in sum of $12,000 to be provided

Category: B

Representation:

Counsel:

Appellant: Mr A P Rumsley
Respondent: Mr B P Wheatley

Solicitors:

Appellant: Alan Rumsley
Respondent: Mossensons

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

Brundza v Robbie & Co (No 2) [1952] HCA 49; (1952) 88 CLR 171
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203
Lord v Direct Acceptance Corporation Ltd (Receiver and Manager Appointed) (In Liq) (1993) 32 NSWLR 362
Smolarek v McMaster [2006] WASCA 216

NEWNES JA: There are two applications before me. The appellant has applied for an order pursuant to s 15 of the Civil Judgments Enforcement Act 2004 (WA) (the Act) suspending the enforcement of an order of O'Neal DCJ in the District Court that the appellant pay to the respondent the sum of $90,354.61, pending the outcome of the appeal. The respondent has applied for security for the costs of the appeal.

The application for a suspension order

The background

I will deal first with the application for a suspension order. It is necessary before turning to the parties' contentions on the application to set out the relevant background. The appeal has its genesis in proceedings brought by the respondent in the District Court against the appellant. In those proceedings, the respondent claimed the sum of $103,092 as hire charges owing by the appellant for accommodation units it hired from the respondent. The respondent applied for summary judgment. The application was refused by a deputy registrar of the District Court who granted the appellant unconditional leave to defend the claim. The respondent appealed to the primary judge who upheld the appeal, set aside the decision of the deputy registrar, and gave judgment for the respondent for the sum of $90,354.61.
The appellant now appeals against the decision of the primary judge. By the present application, it seeks an order suspending the enforcement of the judgment until further order. The appellant says that if it…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2011] WASCA 118
Decision Date: 25 MAY 2011

CaseChat Overview and Summary

The case of Field Camp Services Pty Ltd v Site Accommodation Pty Ltd involved an application by the appellant, Field Camp Services, to the Supreme Court of New South Wales for the suspension of enforcement of a judgment pending the determination of an appeal. The respondents, Site Accommodation and Site Projects Group, opposed the application. The court had to determine whether the appeal had reasonable prospects of success and whether special circumstances existed to warrant a suspension order.

The court considered the merits of the appeal and whether there were reasonable prospects of success. While the court had reservations about the appeal's merits, it was not prepared to conclude that the appeal had no merit. The court also considered the financial circumstances of both parties. The appellant argued that there was a real risk that if the judgment sum was paid to the respondent, it would not be recoverable if the appeal were successful. The court was satisfied with this argument given the appellant's failure to provide any financial information to counter the respondent's evidence of financial difficulty.

The court granted the application for a suspension order on the condition that the judgment sum be paid into court or otherwise secured. The court also ordered the appellant to provide security for the respondent's costs of the appeal. This decision was based on the balance of convenience favouring the appellant and the existence of special circumstances warranting a suspension order. The court emphasised that the granting of the suspension order was not a reflection on the merits of the appeal or the likelihood of its success.

The final orders included the suspension of enforcement of the judgment pending the determination of the appeal, on the condition that the judgment sum be paid into court or otherwise secured, and the requirement for the appellant to provide security for the respondent's costs of the appeal. The court also made an order that the appellant pay the respondent's costs of the application.

Orders

Orders of the court

Full text does not contain this section.

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

Secondly, there is the question of whether the appellant would be entitled to set‑off the damages claimed (if made out) against the arrears of rent. It does not appear to be at all clear that an equitable set‑off would arise. That is because, put broadly, it is not clear that the appellant's claim directly relates to or impeaches the respondent's claim: see, for instance, Lord v Direct Acceptance Corporation Ltd (Receiver and Manager Appointed) (In Liq) (1993) 32 NSWLR 362, 367; and generally Meagher RP, Heydon JD & Leeming MJ, Meagher, Gummow and Lehane's Equity: Doctrines & Remedies (4th ed, 2002), 37‑045. Moreover, the contract between the appellant and the respondent contains a provision (cl 7(f)) which arguably precludes reliance by the appellant on a set‑off. But having said that, these are not matters which it is appropriate to attempt to resolve on an application of this nature. In the end, while I have reservations about the merits of the appeal, for the purposes of this application I am not prepared to conclude that the appeal is without any merit. In support of the appellant's application for a suspension order, Mr Browne says in his affidavit that he has grave concerns that the respondent would be unable to repay the judgment sum if the appeal were successful. He refers to conversations he says he has had with Mr Green of the respondent which indicate that the respondent is in financial difficulties. The relevant gist of each of those conversations, as described by Mr Browne, is denied by Mr Green in his affidavit. Mr Green further denies that the respondent is in financial difficulty but produces no financial information to support that contention. He says, instead, that he and his co‑director also own and operate another company, Site Projects Group Pty Ltd (Site Projects), and that Site Projects and the respondent had a combined income of some $3 million for the period 1 July 2010 to 2 February 2011. Mr Green does not, however, indicate the respective interest each company had in that income. Nor does he refer to their expenses or say what assets they have. While Mr Green annexes some bank statements to his affidavit, they are bank statements of Site Projects. In relation to the financial position of the respondent, Mr Green's affidavit is perhaps more significant for what it does not say than what it does say. I am satisfied there is a real risk that if the judgment sum was paid to the respondent it would not be recoverable by the appellant if the appellant were to become entitled to recover it following success on the appeal. The respondent, on the other hand, points to evidence that the appellant is itself in financial difficulty and says that delay in payment of the judgment sum may result in any funds that are available to meet the debt being dissipated before the appeal is disposed of. There is no evidence from the appellant as to its financial position and its concession that the respondent is entitled to an order for security for costs supports the respondent's concerns.