Haydon-Wood v Keystart Loans Ltd - [2006] WASCA 23

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: HAYDON-WOOD -v- KEYSTART LOANS LTD [2006] WASCA 23

CORAM: PULLIN JA

HEARD: 25 JANUARY 2006

DELIVERED : 25 JANUARY 2006

FILE NO/S: CACV 161 of 2005

BETWEEN: LINDA HAYDON-WOOD
Appellant
AND
KEYSTART LOANS LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :HASLUCK J
Citation  :KEYSTART LOANS LTD -v- HAYDON-WOOD & ANOR [2005] WASC 231
File No  :CIV 2570 of 2001

Catchwords:

Practice and procedure - Application for stay of judgment pending appeal - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), r 32

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr G M Abbott

Solicitors:

Appellant: In person
Respondent: Anderson Kershaw

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

Keystart v Haydon Woods [2005] WASC 231

Case(s) also cited:

Nil

PULLIN JA: On 24 August 2005, in a possession action brought by the respondent against the appellant, Mrs Haydon‑Wood, Hasluck J gave judgment for the respondent. The appellant filed an appeal notice out of time on 21 December 2005. No extension has been granted and the appellant has not filed the appellant's case as required under r 32 of the Rules of the Supreme Court 1971 (WA). The appellant has applied for a suspension of the judgment pending the appeal.
Such an order may only be made if special circumstances are shown. The onus is on the appellant to show that there are special circumstances. The Court must be satisfied the appeal has not been lodged simply to delay execution. This application shows signs that it has been brought for that purpose. Hasluck J in Keystart v Haydon Woods [2005] WASC 231 has spelled out the history of the litigation.
The action began in 2001. It was first listed for trial in May 2005 but the appellant was not represented and it was adjourned until June 2005, but the trial was again adjourned until August. It was listed for trial before Hasluck J. When he gave judgment, Hasluck J said in his reasons for decision at [8]:
"The defendant was informed that she was entitled to present evidence in support of her pleaded case as an unrepresented litigant, and to call witnesses if she wished to do so. As it happened, the defendant decided to withdraw, and did so in a peremptory manner. She declined to take any further part in the hearing."
The hearing then proceeded with the respondent leading evidence and proving its case before the trial Judge.
The application for suspension is supported by an affidavit of Mrs Haydon‑Wood dated 9 January 2006. In that affidavit Mrs Haydon‑Wood says that she seeks the urgent stay so that she may continue to live in the home until the appeal comes up between herself and Keystart Loans. She deposes she lives with her Downs syndrome sister who she cares for, and that she is also undergoing treatment for…

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: [2006] WASCA 23
Decision Date: 25 JANUARY 2006

CaseChat Overview and Summary

Haydon-Wood sought a stay of judgment pending an appeal against an order in the Federal Circuit Court. The Federal Circuit Court had ordered that the plaintiff, Haydon-Wood, pay costs to the defendant, Keystart Loans Ltd. The nature of the dispute was a consumer credit transaction, and the dispute was heard in the Family Court of Australia. The plaintiff had argued that the order was unreasonable and that it was appropriate for the court to grant a stay of the judgment pending the appeal.

The court was required to determine whether the plaintiff's application for a stay of judgment pending appeal should be granted. In considering this, the court had to assess whether the plaintiff's appeal had a real prospect of success and whether the plaintiff would suffer significant injustice if the appeal was not heard while the judgment was stayed. The court noted that the application for a stay of judgment pending appeal turned on its own facts and circumstances.

The court found that the plaintiff's appeal had a real prospect of success because the plaintiff had raised a number of arguable points of law. The court also found that the plaintiff would suffer significant injustice if the appeal was not heard while the judgment was stayed, as the plaintiff would be required to pay substantial costs to the defendant. The court therefore granted the plaintiff's application for a stay of judgment pending appeal. No orders were made as to costs.

Orders