Keeys v State of Queensland

[1996] QCA 564

[1996] QCA 564

COURT OF APPEAL

DAVIES JA
MOYNIHAN J
HELMAN J

Appeal No 10233 of 1996

THE STATE OF QUEENSLAND  Appellant (Defendant)

v

KENNETH MALCOLM KEEYS  Respondent (Plaintiff)

BRISBANE

DATE 06/12/96

DAVIES JA:  This is an application for a stay in respect of a judgment for damages of $164,818.10.  The applicant for the stay, through his counsel Mr Batch SC, accepts that he must establish that there is a real risk that if the appeal is successful that he will not be restored to his original position.

He has, in my view, demonstrated arguable grounds to appeal.

But having read the affidavit of the respondent and the concession by Mr Batch that, for him, the worse case scenario is that the respondent has assets of a net worth $190,000 and that to the extent that he intends to use the money for the judgment it is to increase his equity in those assets, I could not be satisfied that the applicant has established the onus on him to which I have just referred.  I will therefore refuse the application.

MOYNIHAN J:  I agree.

HELMAN J:  I agree.

DAVIES JA:  The application is refused.

MR BATCH:  Do you want to hear me on costs?

DAVIES JA:  Yes.

MR BATCH:  Your Honours, on 29 November my solicitors wrote to so the plaintiff's solicitors setting out the circumstances in relation to the reasons and also the houses and the cars and discussed any reasonable proposal to secure the judgment, and talked about making an application for a stay.  There was no reply at all----

DAVIES JA:  You weren't told anything until this morning, that's your point, isn't it?  That's what you were going to say?

MR BATCH:  Yes, Your Honour.

DAVIES JA:  All right and so what do you say?  What do you say should happen about costs then.

MR BATCH:  I'd seek the costs or, in the alternative, that there be no order as to costs.

DAVIES JA:  Mr Mullins, it's a bit difficult for you to get costs isn't it in those circumstances when you've been asked to say what your assets are and you've done nothing until this morning.

MR MULLINS:  Your Honour, that's not quite right.

DAVIES JA:  Isn't it?

MR MULLINS:  With all due respect.  If I could just hand up the relevant letters.

MR BATCH:  Your Honour, we put some letters in Miss Foley's affidavit at AMF9 and 10.  That correspondence is canvassed in my outline at paragraph 4.

MR MULLINS:  I apologise, Your Honours.  At no time did the -

I have to concede that at no time did the respondent detail the assets that it had whilst it did tell them - or at least the applicant was aware that the respondent had two houses.

My submission is simply this: that the onus rests upon the respondent to show as it did in the correspondence that there was a real risk that the money would be dissipated.  There has never been a risk.  Now, with that onus, the respondents brought the application and Mr Keeys has had to expend the money to be represented.  If he's been successful on the application, the costs should follow the event.  Even on the applicants own material it had never reached that onus of proof.

DAVIES JA:  We don't propose to make any order with respect to costs.