Lunt v New Resource Holdings Pty Ltd [No 2]

[2010] WASCA 169

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   LUNT -v- NEW RESOURCE HOLDINGS PTY LTD [No 2] [2010] WASCA 169

CORAM:   PULLIN JA

HEARD:   8 JULY 2010

DELIVERED          :   8 JULY 2010

FILE NO/S:   CACV 78 of 2008

BETWEEN:   WILLIAM TREVOR LUNT

Appellant

AND

NEW RESOURCE HOLDINGS PTY LTD
Respondent

FILE NO/S              :CACV 60 of 2009

BETWEEN             :PETER BRIGGS

First Appellant

NEW RESOURCE HOLDINGS PTY LTD
Second Appellant

AND

WILLIAM TREVOR LUNT
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :TEMPLEMAN J

Citation  :NEW RESOURCE HOLDINGS PTY LTD -v- LUNT [No 2] [2008] WASC 140

File No  :CIV 1489 of 2001

Catchwords:

Practice and procedure - Application for stay of execution - Parties agreeing to stay subject to conditions - Turns on own facts

Legislation:

Nil

Result:

Application granted

Category:    B

Representation:

CACV 78 of 2008

Counsel:

Appellant:     Mr B W Duckham

Respondent:     Mr S P Paoni

Solicitors:

Appellant:     B W Duckham & Co

Respondent:     Vincent Partners

CACV 60 of 2009

Counsel:

First Appellant               :     Mr S P Paoni

Second Appellant          :     Mr S P Paoni

Respondent:     Mr B W Duckham

Solicitors:

First Appellant               :     Vincent Partners

Second Appellant          :     Vincent Partners

Respondent:     B W Duckham & Co

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

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308

1. PULLIN JA:  The appellants Briggs and New Resource Holdings Pty Ltd have applied to stay execution on the money judgments which are the subject of review in these two appeals.  The respondent in CACV 60 of 2009, Lunt, has obtained judgments in excess of about $2 million, taking into account interest, against Briggs and New Resource Holdings Pty Ltd.  The respondent in CACV 78 of 2008,  New Resource Holdings Pty Ltd, has a judgment for $200,000 plus interest against Lunt.  Both of the judgment debtors have appealed.  The parties to the two appeals reached agreement to suspend execution on the two judgments on certain conditions, inter alia, that in the event of the parties not proceeding with their respective appeals within the time limits set down by the Rules of the Supreme Court 1971 (WA) (Rules), the other party would summarily be entitled to uplift the suspension granted and proceed to execute the judgment. Pursuant to that agreement orders for suspension were made by agreement between the parties in each of the actions, those orders being made in the primary proceedings.

2. I have been informed that on 1 July 2010 Heenan J ordered that the suspension orders made on 30 September 2009 in CIV 1001/01 and CIV 1974/01 be lifted as of 1 July 2010.  I am also informed that his Honour requested that New Resource Holdings Pty Ltd make an application in CIV 1489/01 no later than 2 July 2010 that the suspension order made on 1 July 2009 be lifted, which he would grant on the papers.  His Honour has not yet published reasons for decision and I am therefore not aware of why his Honour made that decision.  However, the parties, Briggs and New Resource Holdings Pty Ltd, have made applications for a suspension order in these appeal proceedings seeking suspension orders in terms of the agreement until the disposal of the appeals.

3. Normally, with an application for a stay, the principles in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 are applied but that case simply sets out considerations which are relevant. What is permitted is that a suspension order may be granted by this court if special circumstances are shown. In this case, the special circumstances are constituted by the agreement between the parties. It has not been demonstrated that the agreement has been breached. It was certainly not breached in spirit because the appeals have been progressing under my supervision for some time and I have been trying to bring the matters to a hearing in this court as soon as possible. The desire to do so has been thwarted at times by applications brought by one or other of the parties which have resulted in delays to the progress of the appeals. The appeals are nearly ready to be listed for hearing. In view of the order that I have made that time be extended in relation to all past steps the parties to the appeal were required to take pursuant to the Rules, until the date when those steps were taken, there has been no breach of the agreement between the parties and I am therefore prepared to grant a stay in the same terms as the orders which were made in the primary proceedings, such order to remain in force until further order.