La Pegna v Ge Mortgage Solutions Ltd
[2014] WASCA 35
•11 FEBRUARY 2014
LA PEGNA -v- GE MORTGAGE SOLUTIONS LTD [2014] WASCA 35
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 35 | |
| THE COURT OF APPEAL (WA) | 11/02/2014 | ||
| Case No: | CACV:1/2014 | 7 & 8 JANUARY 2014 | |
| Coram: | PULLIN JA | 8/01/14 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Applications dismissed | ||
| B | |||
| PDF Version |
| Parties: | LUIGI ALBAGIO CIRO LA PEGNA GE MORTGAGE SOLUTIONS LTD |
Catchwords: | Appeal Application for an adjournment Application for a stay of execution of judgment Turns on own facts |
Legislation: | Nil |
Case References: | Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : LA PEGNA -v- GE MORTGAGE SOLUTIONS LTD [2014] WASCA 35 CORAM : PULLIN JA HEARD : 7 & 8 JANUARY 2014 DELIVERED : 8 JANUARY 2014 PUBLISHED : 11 FEBRUARY 2014 FILE NO/S : CACV 1 of 2014 BETWEEN : LUIGI ALBAGIO CIRO LA PEGNA
- Appellant
AND
GE MORTGAGE SOLUTIONS LTD
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER SANDERSON
File No : CIV 1856 of 2010
Catchwords:
Appeal - Application for an adjournment - Application for a stay of execution of judgment - Turns on own facts
Legislation:
Nil
Result:
Applications dismissed
Category: B
Representation:
Counsel:
Appellant : Mr N N P Oud
Respondent : Mr B C Smith
Solicitors:
Appellant : Standpoint Legal
Respondent : Gadens Lawyers
Case(s) referred to in judgment(s):
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
- PULLIN JA:
1 (This judgment was delivered extemporaneously on 8 January 2014 and has been edited from the transcript.)
2 This is an oral application made today for an adjournment of a stay application which was filed on 2 January 2014. The application for the stay is for a stay pending the hearing of an appeal against a judgment of Master Sanderson which was entered against the present appellant and his wife on 30 November 2010. That judgment was that the appellant and his wife, Mr and Mrs La Pegna, pay to the respondent the sum of $1,524,371.04 plus interest, and that within 14 days after service of the judgment, the defendants give possession of a property at 26 Millington Street, Ardross.
3 Since that judgment on 30 November 2010, there have been property seizure and delivery orders issued and pursuant to those orders there have been seven previous evictions scheduled. There is an eviction scheduled today which is therefore the eighth occasion on which eviction has been scheduled so that the respondent can obtain possession of the property pursuant to the order made by Master Sanderson on 30 November 2010.
4 An appeal notice was filed on 2 January 2014, so the appeal is being brought well over three years out of time and an extension of time would have to be granted before the appeal could be entertained.
5 The application for the stay, which has been made by the appellant and is dated 2 January 2014, is accompanied by an affidavit which provides no material to indicate that any error was made by Master Sanderson in giving judgment on 30 November 2010. The appellant has now retained a solicitor to act for him, and the solicitor has appeared this morning, but he says that he has not been able to obtain any instructions to indicate what grounds of appeal might exist to support the appeal which the appellant wishes to bring before this court.
6 The appellant's solicitor has indicated that he is without full instructions and therefore asks for an adjournment of the application with an interim stay pending the hearing of the full stay application.
7 The interests of both parties have to be considered. On the appellant's side, there is nothing to indicate that there are any reasonable prospects of the appeal succeeding on the information before the court at the moment, and, in any event, if a stay is not granted, the appeal will not be rendered nugatory because if possession is given up and the appeal proceeds and succeeds, then an order could always be made restoring possession to the appellant and his wife if Master Sanderson's order is set aside following the appeal as the property would not be sold for some time.
8 The second thing is that there are no grounds to indicate whether or not there are reasonable prospects of the appeal succeeding and, in any event, it appears that the appellant and his wife have made arrangements to sell the property and they will have to give up possession of the property if the sale that they have entered into is concluded and settlement takes place in March 2014, as indicated by counsel for the appellant.
9 The balance of convenience would favour the respondent in these circumstances because, in the absence of any indication that the appeal would be rendered nugatory, in the absence of any grounds to suggest that there was any error made by Master Sanderson, and in circumstances where the appellant and his wife are going to have to give up possession in any event if the sale that they have entered into takes place in March, then there seems to be no reason why possession should not be given up now.
10 A stay is only granted if special circumstances are shown. Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9] sets out the matters that are generally considered and all of those factors indicate that I should refuse the application for the adjournment, and I do refuse the application. Therefore the oral application dated 8 January 2014 for an adjournment is dismissed.
11 So far as the stay application is concerned, I have refused the application for an adjournment, so it follows that the stay application has to be dismissed as well. So I will also order that the application dated 2 January 2014 for a stay be dismissed.
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