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.…

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.

Continue reading Hodder v Hodder

Details

AGLC: Hodder v Hodder [2008] WASCA 236
Case: [2008] WASCA 236
Decision Date: 19 NOVEMBER 2008

CaseChat Overview and Summary

In the matter of Hodder v Hodder, the Court is considering an application for the suspension of judgment pending an appeal. The appeal pertains to the decision of Judge Martino who dismissed an appeal against a possession order made by Magistrate Roberts. The possession order required the appellant to vacate a property at 39 Victoria Street, Midland, within 21 days. The property in question is owned by the respondent, who is also the appellant's mother. The respondent sought the order to vacate the property, which had been occupied by the appellant for many years, to enable it to be placed on the market for sale.

The legal issues central to this case revolve around the criteria for granting a suspension of judgment pending an appeal. Specifically, the court needed to determine whether the application for a stay met the 'special circumstances' threshold outlined in Section 15(3) of the Civil Judgments Enforcement Act 2004 (WA). The court needed to consider whether the appeal had a reasonable prospect of success, and whether the balance of convenience favoured the applicant. These considerations are rooted in principles established in cases such as Eastland Technology Australia Pty Ltd v Whisson and Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd.

The court, after thorough consideration of the application and the relevant legal principles, concluded that the applicant had not demonstrated the special circumstances necessary to justify a stay. The court held that the appeal did not have a reasonable prospect of success, and the balance of convenience did not favour the applicant. Consequently, the application for a suspension of judgment pending appeal was dismissed, affirming the original possession order that required the appellant to vacate the property within the specified timeframe.

Orders

Orders of the court

Application dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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.

Ratio Decidendi

Legal Principle Established

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