Lunt v New Resource Holdings Pty Ltd [No 2]

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

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.
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.
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.

The case of Lunt v New Resource Holdings Pty Ltd [No 2] involved a dispute where the plaintiff sought a stay of execution on a judgment debt owed by the defendant. The matter was heard in the Federal Circuit Court of Australia. The plaintiff, Lunt, had obtained a judgment against the defendant, New Resource Holdings Pty Ltd, for a substantial sum of money. Following this judgment, Lunt applied for a stay of execution, which was contested by the defendant. The case turned on the specific facts and circumstances of the dispute, with both parties presenting arguments on the merits of granting or denying the stay.

The court was required to determine whether the application for a stay of execution should be granted, taking into account the principles of justice and equity. Key legal issues included the criteria for granting a stay, the impact on both parties if the stay was granted or denied, and the specific conditions under which the parties had agreed to the stay. The court had to balance the rights of the plaintiff to enforce their judgment against the potential hardship to the defendant if the stay was not granted.

In reaching its decision, the court considered the agreement between the parties, which outlined specific conditions for the stay. The court examined whether these conditions were fair and reasonable, and whether they adequately protected the interests of both parties. The court also assessed the likelihood of the plaintiff succeeding on the merits if the stay was not granted. Ultimately, the court found that the conditions set out in the agreement were appropriate and in the interests of justice. Consequently, the court granted the stay of execution, subject to the conditions agreed upon by the parties.

The final orders of the court included the grant of a stay of execution on the judgment debt, effective immediately and subject to the conditions outlined in the agreement between the parties. This decision allowed the defendant to avoid immediate enforcement of the judgment, providing a temporary reprieve pending further proceedings or resolution of the underlying dispute.

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Background to the litigation

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Legal Principle Established