MASSEN v WOLART Nominees Pty Ltd

[2013] WASCA 217

MASSEN -v- WOLART NOMINEES PTY LTD [2013] WASCA 217

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASCA 217
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:80/2013	Heard:	16 JULY 2013
Coram:	PULLIN JA	Delivered:	16/07/13
No of pages:	5	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	MICHAEL ERAZM MASSEN WOLART NOMINEES PTY LTD
Catchwords:	Appeal Application for a stay of execution of judgment pending hearing of appeal Turns on own facts
Legislation:	Civil Judgments Enforcement Act 2004 (WA), s 15(1)(b)
Case References:	Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 Inglis v Commonwealth Trading Bank of Australia [1972] HCA 74; (1972) 126 CLR 161

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MASSEN -v- WOLART NOMINEES PTY LTD [2013] WASCA 217 CORAM : PULLIN JA HEARD : 16 JULY 2013 DELIVERED : 16 JULY 2013 FILE NO/S : CACV 80 of 2013 BETWEEN : MICHAEL ERAZM MASSEN

Appellant

AND

WOLART NOMINEES PTY LTD
Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MASTER SANDERSON

File No : CIV 3045 of 2012

Catchwords:

Appeal - Application for a stay of execution of judgment pending hearing of appeal - Turns on own facts

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 15(1)(b)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant : In person
Respondent : Ms L M Retallack

Solicitors:

Appellant : In person
Respondent : Solomon Brothers

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

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Inglis v Commonwealth Trading Bank of Australia [1972] HCA 74; (1972) 126 CLR 161

PULLIN JA:

(This judgment was delivered extemporaneously on 16 July 2013 and has been edited from the transcript.)

1 This is an application for an urgent stay of execution of a judgment pending the hearing of an appeal which has been instituted by the appellant. The appeal is against the judgment of Master Sanderson, dated 19 March 2013. The master granted summary judgment for possession of a property owned by the appellant, which is at 18 Brady Street in Mount Hawthorn.

2 The statement of claim in the proceedings commenced by the respondent reveals that the respondent loaned the appellant $110,000 in 1994, that the loan was secured by a registered mortgage over the property, and that the terms were that the loan was repayable on demand with no demand to be made before a date in 1997 if interest was paid as agreed.

3 In 1997, there was an extension of mortgage document which was executed and registered. There were two more extensions, one in 2003 and one in 2007. In the latter of those extensions, the agreement was that there would be no demand made before 5 July 2010 if interest was paid as agreed.

4 It is also pleaded that on 19 October 2012, the respondent served a demand for payment on the appellant for principal and costs, and that the appellant failed to pay the amount then owing. The statement of claim sought judgment for the sum secured and interest and costs until judgment, and also an order for possession of the property.

5 The appellant entered an appearance in writing in the proceedings in the General Division of the Supreme Court. The terms of the statement of claim were verified by an affidavit of a director of the respondent, an affidavit of Lisa Maree Retallack, a solicitor in the employ of the solicitors for the respondent, who deposed to telephone conversations with the appellant in January 2013 when the appellant acknowledged that the money principal sum claimed was owing and he was unable to pay.

6 I should add that the appellant agrees that the mortgage security was taken by the respondent and that the principal sum secured was payable.

7 Ms Retallack also deposes that the appellant suggested that he would attempt refinancing in August 2012, and that this caused the respondent to delay issuing a writ until December 2012. The affidavit exhibits numerous lengthy emails from the appellant to the solicitors concerning costs and refinancing.

8 On 7 February 2013 an order 14 chamber summons issued by the respondent was subsequently served on the appellant. On 26 February 2013, the matter was adjourned with an order that the appellant file and serve any affidavits that he wished to rely on by 12 March 2013. None were filed by that date.

9 On 19 March 2013, the application for summary judgment was heard. The appellant appeared in person. The appellant informed this court that he sent through an unsworn copy of an affidavit to the master and that the master read that affidavit before proceeding to judgment. Judgment was then entered in terms of the chamber summons for a sum of money and for possession of the property. On 30 May 2013, a property (seizure and delivery) order was issued directing the sheriff to enter and retake possession on 17 July 2013.

10 On 15 July 2013, the appellant filed an appeal notice appealing against the master's judgment, dated 19 March 2013. The appeal was well out of time. The appellant has filed two affidavits, both dated 15 July 2013, seeking an extension of time and a stay of execution of judgment. The affidavits between them mentioned various medical conditions, and doctor's certificates suggesting that the appellant had some health issues were exhibited.

11 The certificates were not produced to the master. One of the affidavits filed in the appeal made vague and unparticularised complaints of a conflict of interest 'in respect of the parties'. It asserted that, 'other matters in respect of legal interpretation require attention', and made unparticularised, and therefore scandalous, allegations that the court was misled by 'lawyers' for the respondent, or that there was 'corrupt exploitation of indemnity clause'.

12 The principles governing an application for a stay of judgment pending the hearing of an appeal are set out in the case of Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9]. Those principles are that the successful litigant at first instance will ordinarily be entitled to enforce the judgment pending the determination of any appeal.

13 It is for the applicant for a stay to move the court to a favourable exercise of its discretion. The court will not grant a stay unless special circumstances are shown justifying the departure from the ordinary rule, and a central issue is whether the stay is perceived to be necessary to preserve the subject matter or integrity of the litigation, or whether refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal; in other words, without the grant of a stay, whether the right of appeal would be rendered nugatory. However, even if that can be demonstrated, the stay will generally still be refused unless it can be established that the appeal has reasonable prospects of success, and then the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant for a stay. The same principles would govern an application for a suspension order under s 15(1)(b) of the Civil Judgments Enforcement Act 2004 (WA).

14 In this case, there are no grounds of appeal before the court. No draft grounds of appeal have been proffered and the appellant, in his affidavits, provided no information suggesting that the appellant has any reasonable prospect of success in the appeal. In the appeal, he would have to show error on the part of the master before the appeal could succeed, and there is nothing which indicates error on the part of the master.

15 Furthermore, the amount claimed by the respondent, that is, the principal amount, has not been paid and it has not been paid into court, and that is another reason for dismissing the application. See the case of Inglisv Commonwealth Trading Bank of Australia [1972] HCA 74; (1972) 126 CLR 161, 164.

16 For all of the above reasons, the application for a stay must be dismissed.