Greg Roughsedge Realty Pty Ltd v Whitecross

DISTRICT COURT OF QUEENSLAND

CITATION:

Greg Roughsedge Realty Pty Ltd v. Whitecross & Anor. [2001] QDC 052

PARTIES:

GREG ROUGHSEDGE REALTY PTY LTD
(ACN 066 121 284)  (Plaintiff)
v
RAYMOND JOHN WHITECROSS             (First Defendant)
And
SHARON BRENDA WHITECROSS       (Second Defendant)

FILE NO/S:

233/1996

DIVISION:

Civil

PROCEEDING:

Chambers

ORIGINATING COURT:

Maroochydore

DELIVERED ON:

6 April 2001

DELIVERED AT:

Maroochydore

HEARING DATE:

26 March 2001

JUDGE:

Robertson DCJ

ORDER:

I order that:

(1)        the execution of the judgment delivered by His Honour Judge McGill on 22 December 2000 and varied by order on 31 January 2001 be stayed pending the determination of the appeal;

(2)        the first defendant/applicant pay the plaintiff/ respondent’s costs of and incidental to the application to be assessed on the standard basis or as agreed;

(3)        The parties have liberty to apply.

CATCHWORDS:

PRACTICE – Stay of Execution – Applicant seeks order to stay enforcement of District Court judgment pending determination of appeal – judgment given for plaintiff in action regarding real estate agents’ commission – whether applicant has “reasonably arguable grounds of appeal”

Cases cited

Federal Commissioner of Taxation v. Myer Emporium Limited (1986) 160 CLR 220
Croney v. Nand [1999] 2 Qd R 342
Daysea Pty Limited v. Watpac Australia Pty Limited [2000] QDC 306
Alexander v. Cambridge Credit Corporation Ltd [1985] 2 NSWLR 685
Andrews v. John Fairfax & Sons [1979] 2 NSWLR 184
Barry v. National Australia Bank [2000] QCA 12 (4.2.2000)
Jennings Construction Ltd v. Burgundy Royale Investments Pty Ltd (1986) 61 ALJR 102
Griffiths v. Australian Postal Commission (1987) 87 FLR 139
Salamon Nominees Pty Ltd v. Moneywood Pty Ltd [1982] QCA 440 (22.12.1998)
Moneywood Pty Ltd v. Salamon Nominees Pty Ltd [2001] HCA 2 (8.2.2001)
Edelson v. Ward (No. 2) (1983) 63 ALJR 346

Statutes judicial considered

Uniform Civil Procedure Rules, r 761

COUNSEL:

D Kelly (for the applicant)
R Morgan (for the respondent)

SOLICITORS:

Garland Waddington (for the applicant)
Elias Mumford (for the respondent)

1. This is an application pursuant to r.761(2) of the Uniform Civil Procedure Rules.  The applicant first defendant seeks an order that enforcement of a judgment of the District Court of Queensland dated 31^st January 2001 be stayed until the hearing and determination of an appeal to the Court of Appeal against that judgment.

1. Rule 761 is in these terms:

“(1)The starting of an appeal does not stay the enforcement of the decision under appeal.

(2)However, the Court of Appeal, a judge of appeal or the court that made the order appealed from may order a stay of the enforcement of all or part of a decision subject to an appeal.”

1. The plaintiff commenced proceedings in this court by way of plaint on the 13^th August 1996.  Subsequently the plaintiff applied for summary judgment and leave to defend was granted to the defendants on a number of conditions relevantly including a condition that the defendants lodge a bank guarantee for the sum of $84,887.50 with the Court.  In due course a bankers undertaking…