Hodder v Hodder - [2008] WASCA 236

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: HODDER -v- HODDER [2008] WASCA 236

CORAM: PULLIN JA
BUSS JA

HEARD: 18 NOVEMBER 2008

DELIVERED : 19 NOVEMBER 2008

FILE NO/S: CACV 111 of 2008

BETWEEN: JAMES LESLIE HODDER
Appellant
AND
IVY DORIS HODDER
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :MARTINO DCJ
File No  :APP 59 of 2008

Catchwords:

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

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 3, s 15

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr D C Rice

Solicitors:

Appellant: In person
Respondent: Griffiths Rice & Co

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

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222

JUDGMENT OF THE COURT: This is an application for a stay of the judgment of Judge Martino dated 7 November 2008. His Honour dismissed an appeal from the decision of Magistrate Roberts in the Magistrates Court dated 11 September 2008 which ordered that the appellant give vacant possession of a property at 39 Victoria Street, Midland, to the respondent. The magistrate's order required the appellant to give vacant possession within 30 days but that time has been extended and Judge Martino ordered that the appellant give vacant possession within 21 days, which time will expire on 28 November 2008.
Section 15 of the Civil Judgments Enforcement Act 2004 (WA) confers power on this court to suspend the enforcement of the judgment. 'Judgment' is defined in s 3 of the Act to mean, inter alia, a 'judgment or an order of a court that requires or has the effect of requiring a person … to give possession of any property to another person'.
Section 15(3) of the Act states that on an application for a suspension order, the court may only make such an order if there are special circumstances that justify doing so.
The principles which govern the exercise of the discretion under s 15 of the Act are not materially different from those which apply to an application for a stay of execution before the introduction of the Act. See Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222 and the authorities cited at [17]. The discretion to stay execution pending an appeal is unfettered. The applicant for a stay carries the onus of showing that the circumstances are appropriate for a stay to be granted. The principles which are usually employed to determine an application for a stay are summarised in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9].
Circumstances which justify the grant of a stay may exist if it is shown that the appeal may be rendered nugatory. Even so, a stay will generally still be refused unless it can be established that the appeal has a reasonable prospect of success and if that hurdle can be overcome, a stay may still be refused where the balance of convenience does not favour the applicant.
The respondent is the appellant's mother. She is the owner of the premises. The appellant has been living there for many years. The respondent is living in a hostel in Mundaring and has given an enduring power of attorney to two brothers of the appellant - Charles and Brian Hodder. The respondent asked that the appellant and a boarder living in the premises be given notice to vacate the property so it could be placed on the market for sale. In 2007 they were given six months' notice to vacate to enable them to find alternative accommodation. On 13 May 2008, a letter from Charles Hodder gave the appellant notice to vacate the premises on 27 June 2008. The letter was also signed by the respondent and in the letter she said that she objected to a boarder being given lodging in her house and that she authorised her son Charles, acting for her as power of attorney, to take the necessary action to have this person removed. The letter was served on the appellant on 22 May 2008. The appellant did not vacate the premises and the respondent sought a possession order in the Magistrates Court.
The respondent's summons was listed in the Magistrates Court on 16 July 2008. On that date the appellant indicated that he opposed the relief sought by the respondent. The summons was set down for hearing on 29 August 2008. On that date the appellant sought an adjournment. The magistrate adjourned the hearing to 11 September 2008. Then, on 4 September 2008, the appellant sought another adjournment on the ground that he had a dental appointment on 11 September 2008. The further adjournment was refused.
On 11 September 2008, the appellant did not appear. The hearing proceeded in his absence, and an order for possession was made. The appellant then appealed to the District Court.
When the appeal came on for hearing before Judge Martino, the appellant made another application for an adjournment. This time the appellant's reason was that he had made an application on 3 November 2008 to the State Administrative Tribunal (SAT) for an administration order under the Guardianship and Administration Act 1990 (WA) relating to his mother's estate. The appellant had also applied to SAT to revoke enduring powers of attorney granted to Charles and Brian Hodder. Judge Martino dismissed the application for an adjournment, stating that he could see 'no reason why that application to SAT should defer the determination of this appeal which is limited to the issue of whether the respondent, who appears to be the owner of the premises, should be given vacant possession … by the appellant'.
Judge Martino then heard the appeal. The grounds were:
(a)that the magistrate erred in refusing to adjourn;
(b)a power of attorney produced by Charles and Brian Hodder was not 'legally valid' and 'obtained without the consent or authority of all members of the family';
(c)that money secured by sale of the property should not be placed in the accounts of Charles and Brian Hodder, but either placed in a special trust account for the respondent or shared equally amongst all members of the family;
(d)that the respondent had been advised 'incorrectly' by other members of the family that 'son James' (presumably the appellant) could not be a power of attorney because of a police record;
(e)there was no valid reason why the appellant should 'be vacated from the property until the house has been sold';
(f)threatening letters had been sent by the family in an attempt to remove him from the house.
Judge Martino dismissed ground 1. His Honour said:
There had already been one adjournment. Mr James Hodder had a dental appointment at 11.30, and he had plenty of time within which to either change that appointment or endeavour to ensure the application was determined before [having] to attend the appointment at 11.30 and I can see nothing to indicate that that decision to refuse adjournment was incorrect.
The second ground of appeal was also dismissed. His Honour said:
I can see no reason why the power of attorney is not legally valid. It does not seem to me to require the consent of all members of the family and that ground of appeal has not been made out.
His Honour said that the balance of the grounds of appeal did not provide any basis for the overturning of the decision of the magistrate.
On 13 November 2008, the appellant filed an appeal notice in this court and on the same day filed the application for a suspension order pending the hearing of the appeal.
The appellant's grounds of appeal read:
(a)'Judge Martino should not have refused an application to have appeal adjourned, so denying James Hodder his rights to a fair hearing';
(b)'Power of attorney document not legally valid and obtained without the consent or authority of all members of the family';
(c)'Ivy Hodder incorrectly advised by alleged attorneys Charlie and Brian Hodder that son James could not be power of attorney because of police record';
(d)'Threatening letters sent to appellant by family to scare appellant to leave property'.
The appeal may be rendered nugatory if a stay is refused because the appellant may be compelled to give up possession and the home may be sold. If it is not sold before the appeal is heard then if the appeal succeeds it may be possible for the appellant to regain possession. However, even though the appeal may be rendered nugatory, the application for a stay should be refused because, on the evidence before this court, none of the grounds has a reasonable prospect of success.
The first ground has no reasonable prospects of success because there is nothing in the evidence to show that his Honour erred in refusing the application for an adjournment for the reasons he gave.
The three other grounds afford no basis for challenging the order for vacant possession and no basis for alleging error, either as to fact or law, in the decision or reasons given by Judge Martino.
As a result, the application for a stay should be dismissed.