Jawhite Pty Ltd v Trabme Pty Ltd - [2018] QCA 225

SUPREME COURT OF QUEENSLAND

CITATION:

Jawhite Pty Ltd & Anor v Trabme Pty Ltd & Ors [2018] QCA 225

PARTIES:

JAWHITE PTY LTD
ACN 106 661 287
(first applicant)
TRENT ANDREW RYAN
(second applicant)
v
TRABME PTY LTD
ACN 154 609 159
(first respondent)
BOEDRY PTY LTD
ACN 154 609 882
(second respondent)
VESTWELL PTY LTD
ACN 106 478 808
(third respondent)
ADAM BOLAND
(fourth respondent)
MARK WILLIAM EDWARDS
(fifth respondent)

FILE NO/S:

Appeal No 9896 of 2018
SC No 2310 of 2014

DIVISION:

Court of Appeal

PROCEEDING:

Application for Stay of Execution

ORIGINATING COURT:

Supreme Court at Brisbane – Unreported, 4 September 2018 (Boddice J); [2018] QSC 174

DELIVERED ON:

19 September 2018

DELIVERED AT:

Brisbane

HEARING DATE:

18 September 2018

JUDGE:

Morrison JA

ORDERS:

Upon the undertaking of the appellants, by their Counsel, to conduct the appeal expeditiously:

1. Orders No. 1, 2 and 3 made on 4 September 2018 in proceeding No. BS2310/14 are stayed, pursuant to r 761 of the Uniform Civil Procedure Rules 1999 (Qld), pending the determination of the appeal or further earlier order.

2. The costs of the application are reserved.

CATCHWORDS:

APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the applicants seek a stay of enforcement of orders made by the learned primary judge requiring particular payments until an appeal from those orders is heard – where the applicants contend that they may be unable to pay the sums specified in the orders below – where absent a stay, the applicants face the prospect of bankruptcy and insolvency and stultification of their appeal rights – where each of the orders sought to be stayed arose in consequence of the learned primary judge’s findings in respect of the credit of the witnesses, particularly the second applicant – whether the granting of a stay is appropriate

Uniform Civil Procedure Rules 1999 (Qld), r 761

Elphick v MMI General Insurance Ltd & Anor[2002] QCA 347, cited
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited

COUNSEL:

N J Shaw for the applicants
A Myers (sol) for the first and second respondents
A Boland (director) for the third respondent and appeared on his own behalf
The fifth respondent appeared on his own behalf

SOLICITORS:

McMahon Clarke for the applicants
Results Legal for the first and second respondents
A Boland (director) for the third respondent and appeared on his own behalf
The fifth respondent appeared on his own behalf

MORRISON JA: The appellants, Jawhite Pty Ltd and Trent Ryan,[1] apply for a stay of orders made on 4 September 2018, pending an appeal against those orders.
[1]Whom I shall call “Jawhite” and “Ryan”.
In order to succeed in the grant of a stay Jawhite and Ryan must show that the circumstances indicate that the grant is appropriate. That involves a consideration of:
(a)whether there is a good arguable case on the…

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: [2018] QCA 225
Decision Date: 19 September 2018

CaseChat Overview and Summary

In the matter of Jawhite Pty Ltd v Trabme Pty Ltd, the applicants sought a stay of enforcement of orders made by the primary judge, which required particular payments. The applicants argued that they may be unable to pay the specified sums, and without a stay, they faced the prospect of bankruptcy, insolvency, and the stultification of their appeal rights. The legal issues before the court were whether the granting of a stay was appropriate in the circumstances. The applicants urged that an affidavit by Ryan be discounted due to findings of dishonesty, and suggested they might have the capacity to pay the money, but this contention did not rise above assertion.

The court considered the applicants' potential inability to pay and the risk of insolvency and stultification of appeal rights. It was noted that the orders in question arose from the primary judge's findings in respect of the credit of the witnesses, particularly the second applicant. The court concluded that this was an appropriate case to grant a stay of the orders, as the applicants had offered an undertaking by their counsel to pursue the appeal in an expeditious manner. The court stayed Orders 1-3 made on 4 September 2018, pending the determination of the appeal or further order. The costs of the application were reserved.

Orders

Orders of the court

Upon the undertaking of the appellants, by their Counsel, to conduct the appeal expeditiously:

1. Orders No. 1, 2 and 3 made on 4 September 2018 in proceeding No. BS2310/14 are stayed, pursuant to r 761 of the Uniform Civil Procedure Rules 1999 (Qld), pending the determination of the appeal or further earlier order.

2. The costs of the application are reserved.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Mr Boland and Mr Edwards urged that Ryan’s affidavit be discounted because of the findings as to his dishonesty. It was suggested that there might be a capacity to raise or pay the money. However, that contention did not rise above assertion.Conclusion In the circumstances I am persuaded that this is an appropriate case to grant a stay of Orders 1-3 made on 4 September 2018. Mr Shaw offered an undertaking by his clients that they would pursue the appeal in an expeditious manner. The orders are:Upon the undertaking of the appellants, by their Counsel, to conduct the appeal expeditiously:1. Orders No. 1, 2 and 3 made on 4 September 2018 in proceeding No. BS2310/14 are stayed, pursuant to r 761 of the Uniform Civil Procedure Rules 1999 (Qld), pending the determination of the appeal or further earlier order.2. The costs of the application are reserved.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Jawhite Pty Ltd & Anor v Trabme Pty Ltd & Ors [2018] QCA 225
PARTIES:	JAWHITE PTY LTD ACN 106 661 287 (first applicant) TRENT ANDREW RYAN (second applicant) v TRABME PTY LTD ACN 154 609 159 (first respondent) BOEDRY PTY LTD ACN 154 609 882 (second respondent) VESTWELL PTY LTD ACN 106 478 808 (third respondent) ADAM BOLAND (fourth respondent) MARK WILLIAM EDWARDS (fifth respondent)
FILE NO/S:	Appeal No 9896 of 2018 SC No 2310 of 2014
DIVISION:	Court of Appeal
PROCEEDING:	Application for Stay of Execution
ORIGINATING COURT:	Supreme Court at Brisbane – Unreported, 4 September 2018 (Boddice J); [2018] QSC 174
DELIVERED ON:	19 September 2018
DELIVERED AT:	Brisbane
HEARING DATE:	18 September 2018
JUDGE:	Morrison JA
ORDERS:	Upon the undertaking of the appellants, by their Counsel, to conduct the appeal expeditiously: 1. Orders No. 1, 2 and 3 made on 4 September 2018 in proceeding No. BS2310/14 are stayed, pursuant to r 761 of the Uniform Civil Procedure Rules 1999 (Qld), pending the determination of the appeal or further earlier order. 2. The costs of the application are reserved.
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where the applicants seek a stay of enforcement of orders made by the learned primary judge requiring particular payments until an appeal from those orders is heard – where the applicants contend that they may be unable to pay the sums specified in the orders below – where absent a stay, the applicants face the prospect of bankruptcy and insolvency and stultification of their appeal rights – where each of the orders sought to be stayed arose in consequence of the learned primary judge’s findings in respect of the credit of the witnesses, particularly the second applicant – whether the granting of a stay is appropriate Uniform Civil Procedure Rules 1999 (Qld), r 761 Elphick v MMI General Insurance Ltd & Anor[2002] QCA 347, cited Fox v Percy (2003) 214 CLR 118; [2003] HCA 22, cited
COUNSEL:	N J Shaw for the applicants A Myers (sol) for the first and second respondents A Boland (director) for the third respondent and appeared on his own behalf The fifth respondent appeared on his own behalf
SOLICITORS:	McMahon Clarke for the applicants Results Legal for the first and second respondents A Boland (director) for the third respondent and appeared on his own behalf The fifth respondent appeared on his own behalf