Ladang Jalong (Australia) Pty Ltd v Callander - [2005] WASCA 203

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: LADANG JALONG (AUSTRALIA) PTY LTD & ANOR -v- CALLANDER [2005] WASCA 203

CORAM: MCLURE JA

HEARD: 7 OCTOBER 2005

DELIVERED : 7 OCTOBER 2005

FILE NO/S: CACV 99 of 2005

BETWEEN: LADANG JALONG (AUSTRALIA) PTY LTD
First Appellant
ZAINAL ABIDIN BIN MOHAMMED ISA
Second Appellant
AND
WILLIAM JOHN CALLANDER
Respondent

Catchwords:

Practice and procedure - Application for an order suspending the enforcement of a judgment pursuant to s 15 Civil Judgments Enforcement Act 2004 (WA) - Test for suspension order - Turns on own facts

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 15

Supreme Court Act 1935 (WA)

Supreme Court Rules 1971

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Appellant               :     Mr M H Zilko SC
Second Appellant          :     Mr M H Zilko SC
Respondent:     Mr M D Cuerden

Solicitors:

First Appellant               :     David Taylor
Second Appellant          :     David Taylor
Respondent:     Verschuer Edward

Case(s) referred to in judgment(s):

Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308
Warwick Entertainment Centre Pty Ltd v Alpine Holdings Pty Ltd [2005] WASCA 174

Case(s) also cited:

Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685
Barraclough v Brown [1879] 2 AC 615
Commonwealth of Australia v SCI Operations Pty Ltd (1998) 192 CLR 285
Cox v Simeon, unreported; FCt SCt of WA; Library No 5063; 7 September 1983
Croney v Nand [1999] 2 Qd R 342
Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79
JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) [1983] 2 Qd R 255
Josephson v Walker (1914) 18 CLR 691
Re Totalisator Administration Board of Queensland [1989] 1 Qd R 215
State Bank of Victoria v Parry [1989] WAR 240

MCLURE JA: This is an application made to the Court of Appeal under s 15(1)(b) of the Civil Judgments Enforcement Act 2004 (WA) ("Act") for an order suspending the enforcement of part of the judgment of McKechnie J made on 20 July 2005 (the liability judgment) and the judgment on 16 September 2005 (the costs judgment).
The appellants previously made an unsuccessful application for suspension of the liability judgment. That application was heard by Master Sanderson on 13 September 2005. Initially the respondent contended that the renewed application to this Court, at least on the liability judgment, was incompetent. The jurisdiction argument is not now pressed. I have formed a view on that issue, but any statement I make would be obiter and in the circumstances it is inappropriate for me to state my view and the reasons for it.
The principles applicable to the exercise of the discretion under s 15 of that Act are, in my view, materially the same as those that govern the disposition of an application under the Supreme Court Act 1935 and Supreme Court Rules1971 which give the Court of Appeal the power to grant a stay of execution. Those principles are conveniently collected in the Full Court decision of Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308. They are, firstly, that the successful litigant at first instance will ordinarily be entitled to enforce the judgment pending the determination of any appeal. Secondly, it is for the applicant for a stay to move the Court to a favourable exercise of its discretion. Thirdly, it will not do so unless special circumstances are shown justifying the departure from the ordinary rule.
A central issue is whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation. If that can be demonstrated, the stay will generally still be refused unless it can be established that the appeal process has reasonable prospects of success. If that hurdle can be overcome, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant.
I start with the requirement that the appeal have reasonable prospects of success. If it appeared on a preliminary assessment that it had no prospect of success, the application would not get to first base. I have read the reasons for decision of McKechnie J and the other relevant material going to the merits of the grounds of appeal, of which there are six.
The respondent has filed its case, which includes a notice of contention and its submissions on the merits. In essence, the appellants are challenging the quantum of the award of damages of some $160,000, save for a small sum of approximately $6200.
The first ground of appeal claims the trial Judge erred in awarding loss of employee benefits for the respondent's unchallenged misleading and deceptive conduct. The appellants characterise the award as expectancy damages. The respondent disagrees with that characterisation and relies on a number of authorities in support. The recent decision of this Court in Warwick Entertainment Centre Pty Ltd v Alpine Holdings Pty Ltd [2005] WASCA 174 can arguably be distinguished on its facts.
I am persuaded that the appellants' first ground has reasonable prospects of success, without going any further to describe its strength or otherwise. At the end of the day it will be a question of fact based on the evidence before the trial Judge. In any event, the respondent contends the trial judge should have found that the respondent was employed by the first appellant which is an alternative basis for upholding the award of damages.
The balance of the grounds of appeal relate to questions of evidence or pleadings. It is unnecessary for me to go to them in detail. However, it is appropriate to observe that there is no material before this Court upon which to make an assessment of whether the grounds of appeal are reasonably arguable or, indeed, arguable at all. I have had regard to the respondent's submissions. They challenge the correctness of what is asserted by the appellants and refer to evidence which is not before me. Based on the material before the Court it is not open to me to conclude that there are reasonable prospects of succeeding on these grounds.
The first ground of appeal, from recollection, relates to approximately $94,000 of the judgment of $160,000. So the stay could in any event only apply to that quantum of the claim.
The special circumstances on which the appellants rely in support of the suspension is that the appeal will be rendered nugatory because, having regard to the respondent's financial position, there is no reasonable prospect of recovering moneys paid to him pursuant to the judgment or there is a real risk that it will not recover the money.
The respondent has filed an affidavit in opposition to the stay. He deposes to the fact that the loss of his plant and equipment and the financial pressure resulting from his dealings with the first appellant have prevented him from re‑establishing the business he ran for 30 years before he began to work with (to use a neutral term) the first appellant.
There appears to be no dispute that the respondent did in fact suffer financial loss as a result of his dealings with the first appellant. The question in the appeal is whether the evidence establishes the quantum and whether as a matter of principle the appellants are liable for that loss. The action was commenced in 2000 and judgment was given in 2005. These factors, in my view, weigh in the balance of convenience in the respondent's favour.
Further, the appellant deposes that he intends to use the judgment sum to purchase a modest house in a semi‑rural area and to recommence his business. I infer from his solicitor's affidavit that the award of costs would be paid to her firm. In her affidavit she gives an undertaking to repay to the appellants all moneys received by her by way of costs in the event the appeal is successful. I assume she means any success in overturning or altering the costs orders made at trial. She gives that undertaking in the affidavit and I place some weight on that undertaking in reaching my decision on the balance of convenience.
I am not satisfied that there is no reasonable prospect of the appellants recovering the judgment sum if the appeal is successful. The evidence is that the money is going to be used to buy assets of, I infer, an equivalent value. The solicitor has given an undertaking on costs. In any event, any slight risk of the appellants not recovering the money is counterbalanced by the other matters to which I have referred.
Accordingly, subject to the solicitor giving an undertaking in relation to repayment of costs, I would dismiss the application.