KNJ Pty Ltd v Dare Sutton Clarke Pty Ltd Summary

COURT OF APPEAL

WILLIAMS JA

Appeal No 2694 of 2006

KNJ PTY LTD
(ACN 082 047 952) Applicant/Respondent)

DARE SUTTON CLARKE PTY LTD
(ACN 008 026 940) Respondent/Applicant)

BRISBANE

..DATE 11/04/2006

JUDGMENT

MS R M KELLY (instructed by MacDonnells) for the applicant

MR P D HAY (instructed by Bennett & Philp Solicitors) for the respondent

WILLIAMS JA: This is an application pursuant to rule 765 of the Uniform Civil Procedure Rules for a stay of execution of a judgment of the District Court made on the 10th of March 2006. The judgment was pursuant to section 19 of the Building and Construction Industry Payments Act 2004 for the sum of $54,638.93. The present applicant appeared before the District Court Judge by counsel who was instructed by the client's solicitor. Counsel for the applicant conducted the case raising a particular defence which was unsuccessful.

Present counsel for the applicant frankly conceded on the hearing of this application that all the grounds of appeal were not argued at first instance. Indeed, it seems that all the matters the subject of the grounds of appeal were the subject of admissions made by counsel for the applicant at first instance. Those admissions were made in the presence of the instructing solicitor. In those circumstances, on the hearing of the appeal the applicant seeks to place evidence

before the Court challenging the basis on which those admissions were made.

Against that background I am not satisfied that the applicant has discharged the onus of showing that this is an appropriate case in which to grant a stay of the judgment. For those reasons the application is dismissed with costs.

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CaseChat Overview and Summary

In the Court of Appeal, Williams JA heard an appeal concerning a judgment from the District Court, which had been awarded under the Building and Construction Industry Payments Act 2004. The applicant, KNJ Pty Ltd, sought a stay of execution of this judgment, which was for the sum of $54,638.93. The respondent, Dare Sutton Clarke Pty Ltd, opposed the application. The appeal arose from the applicant's dissatisfaction with the outcome of the initial judgment and their attempt to challenge certain admissions made during the first instance of the case.

The legal issues the court had to resolve included whether the applicant had discharged the onus of proving that the case was appropriate for a stay of execution and whether the applicant's grounds of appeal were adequately argued at first instance. The court also had to consider the relevance and admissibility of new evidence presented by the applicant to challenge the basis of the admissions made at the first instance.

In delivering the judgment, Williams JA found that the applicant had not discharged the required onus to demonstrate that the case warranted a stay of execution. The court noted that the applicant's current counsel had not argued all grounds of appeal at first instance, and that the matters in question had been the subject of admissions made by the applicant's previous counsel. The applicant also sought to present new evidence that challenged these admissions, which had been made in the presence of the instructing solicitor. The court concluded that the applicant had not provided sufficient justification for granting the stay of execution. Consequently, the application was dismissed with costs awarded to the respondent.

The final orders of the court were that the application for a stay of execution of the judgment was dismissed, and costs were awarded to Dare Sutton Clarke Pty Ltd.

KNJ Pty Ltd v Dare Sutton Clarke Pty Ltd

CaseChat Overview and Summary

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Background to the litigation

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Legal Principle Established