Mueller v EDENHILL Enterprises Pty Ltd
[2013] WASCA 270
•27 NOVEMBER 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MUELLER -v- EDENHILL ENTERPRISES PTY LTD [2013] WASCA 270
CORAM: PULLIN JA
NEWNES JA
HEARD: 21 NOVEMBER 2013
DELIVERED : 21 NOVEMBER 2013
PUBLISHED : 27 NOVEMBER 2013
FILE NO/S: CACV 89 of 2013
BETWEEN: KARL PAUL MUELLER
Appellant
AND
EDENHILL ENTERPRISES PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :CURTHOYS DCJ
File No :APP 95 of 2012
Catchwords:
Appeal - Application for a stay of execution of Magistrates Court and District Court orders - Application dismissed - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Ms A D Gimisis
Solicitors:
Appellant: In person
Respondent: SRB Legal
Case(s) referred to in judgment(s):
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
PULLIN JA:
(This judgment was delivered extemporaneously on 21 November 2013 and has been edited from the transcript.)
The appellant has applied for a stay of judgment in the proceedings below. In effect, the appellant is seeking a stay to prevent enforcement of costs orders which have been made in the Magistrates Court and in the District Court. So far, the District Court fees have been taxed and allowed at $8,838.70. The court has been informed that the Magistrates Court costs have not yet been taxed, but they are estimated at $2,059.20.
In considering an application for a stay, it is necessary to consider some principles that are usually applied, and they are set out in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9]. The primary approach of the court is to see whether there are any special circumstances which justify the grant of a stay, and one of the relevant factors is whether or not the appeal would be rendered nugatory if a stay is not granted. In this case, there is nothing to indicate that the appeal would be rendered nugatory if a stay was not granted.
The costs that I have referred to, if paid by Mr Mueller, would be recoverable in the event of success by Mr Mueller in the appeal. He indicates that he is not able to pay that sum, but the court does not have sufficient information to make any judgment about that. Mr Mueller has indicated from the bar table that he does own property, which is the subject of a mortgage. He therefore has some relationship with a bank. He indicates that his health is not good and the health of his partner is not good. The court is not able to determine whether or not Mr Mueller is unable to pay the money or to raise the money by approaching the bank. So, in those circumstances, where the respondent has the benefit of a judgment in the Magistrates Court and a judgment in the District Court, there is no basis for concluding that there are any special circumstances. On that basis, I would dismiss the application for a stay.
NEWNES JA: I agree with Pullin JA.
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