Haydon-Wood v Keystart Loans Ltd
[2006] WASCA 23
•25 JANUARY 2006
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 throat cancer.
The affidavit annexes a note from Mr Doy the Deputy Sheriff which reads:
"Further to our conversation earlier this morning, I have contacted the Supreme Court and Keystart. There was no stay of execution order granted, only a hearing date. Keystart has advised they want the eviction order to proceed urgently. I will be attending at 9 am Tuesday, 10 January 2006 to take possession of the premises."
Mrs Haydon‑Wood also says in her affidavit that she had an appointment with a lawyer on 11 January who she was hoping would commence work on her appeal. She says that she has found a witness and also new evidence in support of her appeal. If a stay cannot be granted, she feels she will not have the advantage on the appeal. She says that the state of the house has a lot to do with her fight with Keystart Loans.
She also says that she has no other way of getting another home to live in by 10 January when the sheriff was to take possession, and that both she and her sister live on a disability pension. I was given information this morning by Mrs Haydon‑Wood that she has found somewhere to stay in the meantime, possession had been taken of the premises and that she also was unable to see the lawyer on 11 January but is still hoping to do something in that regard.
In the absence of any grounds of appeal, it is difficult to see any basis for the grant of a stay. The appellant has now had time to look for accommodation and has informed the court that that immediate problem has been solved, at least on a temporary basis. The position of the respondent would be prejudiced if it was held out of the property and was not able to proceed with the sale of the property.
So far as Mrs Haydon-Wood is concerned, if she is able to process the appeal through to the point where there are grounds of appeal and merit shown to be in them, then of course a further application may be made but I need to make it clear, as I think I made clear to Mrs Haydon‑Wood during submissions, the dispute that she has with the builder about the quality of construction of the house is not necessarily anything to do with the financial arrangement between the appellant Mrs Haydon-Wood and Keystart Loans Ltd.
I do not know enough about the circumstances to make any further observation. On the face of the reasons for decision of Hasluck J, it does appear that there was a contract with the builder Commodore Homes, and that has produced a dispute. There is some litigation. That litigation is between Mrs Haydon-Wood and Commodore Homes (not with Keystart Loans).
I see no special circumstances at present for grant of a stay and I would therefore dismiss the application.