Littler v Price

[2004] QCA 299

SUPREME COURT OF QUEENSLAND

CITATION:	Littler & Anor v Price & Ors [2004] QCA 299
PARTIES:	ALAN JOHN LITTLER (plaintiff/respondent) SUSAN ELIZABETH LITTLER (plaintiff/respondent) v LINDA JEAN PRICE (first defendant) C & L PRICE PTY LTD ACN 060 624 008 trading as LINDA PRICE BUSINESS (second defendant) MARK GEORGE TEARE (third defendant/applicant)
FILE NO/S:	Appeal No 6852 of 2004 DC No 4924 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	Application for Stay of Execution
ORIGINATING COURT:	District Court at Brisbane
DELIVERED EX TEMPORE ON:	13 August 2004
DELIVERED AT:	Brisbane
HEARING DATE:	13 August 2004
JUDGES:	Williams JA
ORDERS:	1. Application for stay of execution dismissed 2. Direct that the hearing of the appeal take place on 9 September 3. Direct that:    (a) The appellant’s outline be lodged and served by 20 August 2004    (b) The respondent’s outline be lodged and served by 26 August 2004    (c) The appellant’s reply, if any, be lodged by 30 August 2004    (d) The respondent’s reply, if any, be lodged by 2 September 2004    (e) A settled index be lodged by 26 August 2004    (f) The record book to be filed by 2 September 2004 4. The costs of the application are to be costs in the appeal
CATCHWORDS:	PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – STAYING PROCEEDINGS – where applicant appeals judgment against him – where some concern that respondents would not be in a position to repay judgment amount if the appeal was successful – where respondents’ financial situation was caused by applicant’s conduct – whether applicant has shown good reason why a stay of proceedings should be granted
COUNSEL:	J H Dalton for the applicant A P J Collins for the respondents
SOLICITORS:	Brian Bartley & Associates for the applicant Quinn & Scattini for the respondents

WILLIAMS JA:  This is an application for a stay of the enforcement of a judgment in favour of the respondent which was given in the District Court on 23 July 2004. 

The judgment in question was against the present applicant and other defendants in the sum of $107,939.

The applicant, who is a solicitor, was found to be in breach of retainer and the Notice of Appeal which has been filed broadly challenges the judgment on the basis that the retainer was not breached as found by the learned trial judge. 

The concern of the applicant is that the respondents, plaintiffs at trial, would not be in a position to repay the money if the appeal was successful.  The evidence certainly does justify some concern in that regard, but against that it has to be said that the clear finding by the learned trial judge was that the respondents' present financial situation was caused by the events giving rise to the judgment against all of the defendants at trial.

The onus is on the applicant of showing good reason why the stay should be granted and in general terms in approaching that question the Court must have regard to what is fair as between all the parties.  Notwithstanding as I say that there
is some concern about the capacity of the respondents to repay if the appeal was successful, I am not satisfied that the applicant has shown good reason for the stay to be granted and the application will be dismissed.

The Court is in a position to direct that the hearing of the appeal take place on the 9th of September 2004 and in order to achieve a hearing on that date the following directions are made:
    (1)  The appellant's outline to be lodged and served by the
        20th of August 2004;

(2)The respondent's outline to be lodged and served by the 26th of August 2004;

(3)The appellant's reply, if any, by the 30th of August 2004;

(4)The respondent's reply, if any, by the 2nd of September 2004;

(5)A settled index to be lodged by the 26th of August 2004; and

(6)The record book to be filed by the 2nd of September 2004.

The costs of the application should be costs in the appeal.