King v WesTrac Equipment Pty Ltd - [2003] WADC 288

KING -v- WESTRAC EQUIPMENT PTY LTD [2003] WADC 288

Last Update: 22/12/2003

KING -v- WESTRAC EQUIPMENT PTY LTD [2003] WADC 288
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WADC 288
Case No:	CIV:1316/2002	Heard:	28 NOVEMBER 2003
Coram:	WILLIAMS DCJ	Delivered:	19/12/2003
Location:	PERTH	Supplementary Decision:
No of Pages:	6	Judgment Part:	1 of 1
Result:	Stay granted
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	STANLEY JAMES KING WESTRAC EQUIPMENT PTY LTD
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
Case References:	Federal Commissioner of Taxation v Myer Emporium Ltd 64 ALR 325 Nil

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

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

(Page 2)

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

(Page 3)

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…

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.

Keep reading for free

Create a free CaseChat account to read King v WesTrac Equipment Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] WADC 288
Decision Date: 19 DECEMBER 2003

CaseChat Overview and Summary

King v WesTrac Equipment Pty Ltd is a decision where the applicant, King, sought a stay of execution of a judgment awarded against the respondent, WesTrac Equipment Pty Ltd, in the District Court. The judgment was for unpaid hire charges. The Full Court of the Supreme Court was tasked with determining whether there was a reasonable prospect that the applicant would recover the moneys paid pursuant to the judgment if the appeal to the Full Court were to succeed.

The central legal issue before the court was whether the applicant had a reasonable prospect of success on appeal and if there were grounds to stay the execution of the District Court judgment. The applicant argued that there were arguable errors of law in the District Court's judgment which, if found to be correct on appeal, would lead to a significant reduction in the amount payable. The applicant also contended that the stay would not cause significant injustice to the respondent.

The Full Court considered the principles governing the grant of a stay of execution of judgment. It was noted that the court must consider the likelihood of success on appeal, the nature and extent of any prejudice to either party if the stay was granted or refused, and the public interest. The court held that there was a reasonable prospect of the appeal succeeding based on the errors of law identified by the applicant. The court found that the prejudice to the respondent, if the stay was granted, was not significant, and the public interest in ensuring a fair appeal process weighed in favour of granting the stay. Therefore, the court concluded that the stay should be granted.

Orders

Orders of the court

Stay granted

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.