| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : KING -v- WESTRAC EQUIPMENT PTY LTD [2003] WADC 288 CORAM : WILLIAMS DCJ HEARD : 28 NOVEMBER 2003 DELIVERED : 19 DECEMBER 2003 FILE NO/S : CIV 1316 of 2002 BETWEEN : STANLEY JAMES KING Plaintiff
AND
WESTRAC EQUIPMENT PTY LTD
Defendant
Catchwords: Practice and procedure - Stay of Execution of District Court judgment pending appeal to Full Court - Whether reasonable prospect of recovery of moneys paid pursuant to the judgment
Legislation: Nil
Result: Stay granted
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Representation:
Counsel:
Plaintiff : Mr B Nugawela
Defendant : Mr D Clyne
Solicitors:
Plaintiff : Chapmans
Defendant : Pynt McKay
Case(s) referred to in judgment(s):
Federal Commissioner of Taxation v Myer Emporium Ltd 64 ALR 325
Case(s) also cited:
Nil
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1 WILLIAMS DCJ: This is an application by the defendant that pending the determination of the appeal in this matter between the plaintiff and the defendant in the Full Court of the Supreme Court of Western Australia in action number FUL 95 of 2003 there be a stay of the judgment delivered herein on 11 June 2003, in favour of the plaintiff in the sum of $282,257.66.
2 The principal reason upon which the defendant seeks a stay of execution is that if the defendant has to pay the judgment sum to the plaintiff there is a significant risk that the moneys will be dissipated and the plaintiff has no obvious ability to repay the sum in the event the appeal is successful so as to render the outcome of the appeal nugatory insofar as the defendant is concerned. 3 By letters dated 1 and 18 July 2003 the defendant's solicitors sought from the plaintiff's solicitors details of the plaintiff's assets and liabilities for the purpose of determining whether or not he had the capacity to repay any amount paid to him. By letter dated 22 July 2003 from the plaintiff's solicitors that request was denied. No explanation was given before me for this refusal. 4 The evidence at trial indicated that the plaintiff had not worked on a full-time basis since approximately 2001 and had chosen to work only part-time as a limousine driver. The learned trial Judge made findings that he had not sought employment and had not mitigated his loss. 5 A complicating factor in this matter is that the plaintiff received workers' compensation payments from SGIO and that company is entitled to a first charge over the judgment sum in an amount of $102,319.86. It is only after that amount is paid by the defendant that any net benefit would be awarded to the plaintiff. 6 It is the defendant's submission that another issue which is relevant to the consideration of whether or not money should be paid to the plaintiff is the fact that he lied on oath on several occasions and in particular insofar as denying that he earned income from the sale of cannabis. It was only after a number of denials in that regard than an admission was finally made in the course of cross-examination and thereafter it was only after the trial Judge granted the plaintiff a certificate under s 11 of the Evidence Act that any proper concession was made in that regard. The plaintiff produced his 2002 diary to the Court which had several pages torn from it. From the balance of that diary it became
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obvious that he had earned at least $4,000 from the sale of cannabis (judgment par 18 – T, pp 98-108). 7 It is the defendant's further submission that the plaintiff is in receipt of a Centrelink parenting payment in respect of which he has failed to disclose to the department his actual earnings (T, pp 108-109). 8 The two amounts which are principally in issue in the appeal are the awarding of past loss from the period subsequent to January 2001 in an amount of $40,000 and the awarding of $150,000 for future loss. Those amounts total $190,000 and exceed the balance of moneys due under the judgment after the discharge of the first charge to the SGIO. It is for that reason that a stay of the judgment is sought by the defendant. 9 In an attempt to avoid the necessity for an application for a stay of execution the defendant offered the plaintiff a part payment of the judgment sum, pending determination of the appeal and by facsimile dated 31 July 2003 the sum of $75,000 was offered. The offer was rejected by the plaintiff. 10 On 7 August 2003 the plaintiff filed an affidavit in opposition to the defendant's application in which he referred to his ownership of real property at 114 The Broadview, Landsdale. Copy land title search appears as Annexure "A1" to that affidavit. 11 Examination of Annexure "A1" establishes that the property at that address is owned by the plaintiff and the plaintiff's wife, Lita Janine King, as joint tenants. 12 At the trial of this matter on 3 February 2003 the plaintiff gave evidence that he and his wife separated in October 2002 (T, pp 31-33). The plaintiff's wife also gave evidence that she and the plaintiff separated in October 2002 (T, pp 313-315). 13 In my view the statement in his affidavit sworn 7 August 2003 that he owned the property at 114 The Broadview, Landsdale is in those circumstances quite untrue. The simple fact is that he is a joint tenant with his wife in the property. 14 The plaintiff deposes to the fact that the property has an estimated value of approximately $230,000 and is mortgage to an amount of approximately $74,000. That would leave an apparent equity in the property of $156,000 less any expenses of sale, which sum would be owned jointly by the plaintiff and his wife.
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15 Furthermore in the trial of this matter on 5 February 2003 the plaintiff's wife described her and the plaintiff's family relationship, post accident, as being under strain (T, pp 317-317).
16 In his affidavit the plaintiff states that he has home contents which are insured for a value of $46,000. An inspection of the policy indicates that that is for unspecified contents. The plaintiff does not state what the value of that property is nor whether it is owned by him or by his wife or jointly. 17 It is the submission of counsel for the defendant that it is not clear at this stage, what action, if any, might be taken by Federal and State authorities, including seizure of assets under the proceeds of crime legislation, in respect of the plaintiff's admitted cultivation and sale of cannabis and improper receipt of social security benefits and what further expenses the plaintiff might occur in this regard. 18 It is a submission of counsel for the defendant that if it has to pay the judgment sum to the plaintiff there is a significant risk that the moneys will be dissipated in circumstances where the plaintiff has no obvious ability to repay the sum in the event the appeal is successful so as to render the outcome of the appeal nugatory so far as the defendant is concerned. 19 In Federal Commissioner of Taxation v Myer Emporium Ltd64 ALR 325 at 327 Dawson J said as follows: "Order 70, r 12 was amended on 5 December 1985 and in its new form is the counterpart of similar rules in other jurisdictions. It is well established by authority that the discretion which it confers to order a stay of proceedings is only to be exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal: see, eg, The Annot Lyle (1886) 11 PD 114 at 116; Scarborough v Lew's Junction Stores Pty Ltd [1963] VR 129 at 130. Special circumstances justifying a stay will exist where it is necessary to prevent the appeal, if successful, from being nugatory: see Wilson v Church (No 2) (1879) 12 Ch D 454 at 458; Klinker Knitting Mills Pty Ltd v L'Union Fire Accident and General Insurance Co Ltd [1937] VLR 142. Generally that will occur when, because of the respondent's financial state, there is no reasonable prospect of recovering
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moneys paid pursuant to the judgment at first instance. However, special circumstances are not limited to that situation and will, I think, exist where, for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed: see McBride v Sandland [No 2] (1918) 25 CLR 369 at 375." 20 In my view the defendant has clearly established in this case that because of the plaintiff's financial state there is no reasonable prospect of recovering moneys paid pursuant to the judgment at first instance. Alternatively there is a real risk that it will not be possible for the defendant to be restored substantially to its former position. 21 In my view the defendant has amply established the grounds for a stay. 22 There will be an order for a stay of the judgment delivered hereon on 11 June 2003 pending the determination of the appeal between the plaintiff and the defendant. |