Muirhead and Muirhead v Commonwealth Bank of Australia

[1995] QCA 335

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane

Appeal No. 120 of 1995

[Muirhead & Anor v. Commonwealth Bank of Australia]

BETWEEN:

GEORGE ARTHUR ROBERT MUIRHEAD AND

STEPHANIE SUSAN MUIRHEAD

Appellants/Defendants

AND:

COMMONWEALTH BANK OF AUSTRALIA

Respondent/Plaintiff

Pincus J.A. Ambrose J. Helman J.

Judgment delivered 8/8/1995

Separate concurring reasons of each member of the Court

APPLICATION REFUSED

CATCHWORDS:	APPEAL - application for stay of execution of judgment - whether special or exceptional circumstances
Counsel:	D.C. Fitzgibbon for the appellants P. McMurdo Q.C. for the respondent
Solicitors:	Walsh Halligan Douglas as town agents for Woodgate Morgan for the appellants Gadens Ridgeway for the respondent
Hearing date:	14 July 1995
IN THE COURT OF APPEAL	[1995] QCA 335
SUPREME COURT OF QUEENSLAND

Appeal No. 120 of 1995.

Brisbane

Before Pincus J.A. Ambrose J. Helman J.

[Muirhead v. Commonwealth Bank]

BETWEEN:

GEORGE ARTHUR ROBERT MUIRHEAD

and STEPHANIE SUSAN MUIRHEAD

(Defendants) Appellants

AND:

COMMONWEALTH BANK OF AUSTRALIA

(Plaintiff) Respondent

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 08/08/1995

I have read the reasons of Helman J and agree with his Honour’s conclusion. It is

unnecessary to set out the nature of the case and the arguments advanced, which are both

explained by Helman J. A stay of execution would be a proper course only if it were the law

that a stay of a money judgment will usually be granted pending appeal, for there are, as

pointed out by Helman J, no special circumstances here which would warrant a stay.

Despite Mr Fitzgibbon’s earnest argument it seems to me that the only course the Court

can properly follow is to refuse the application for a stay.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 120 of 1995

Brisbane

Before Pincus JA Ambrose J Helman J

BETWEEN:

GEORGE ARTHUR ROBERT MUIRHEAD

and STEPHANIE SUSAN MUIRHEAD

Appellants/Defendants

AND:

COMMONWEALTH BANK OF AUSTRALIA

Respondent/Plaintiff

REASONS FOR JUDGMENT - AMBROSE J.

Judgment delivered 08/08/1995

I have had the advantage of reading the draft reasons for judgment of Helman J in this matter.

I agree with the conclusion he has reached and generally with the matters of principle to which he has

referred.

I think it right, however, to express this reservation. I am unpersuaded upon the material

placed before this Court that the appellants do in fact have an arguable case.

Upon the face of the specially endorsed writ of summons upon which the respondent

obtained summary judgment, it is clear that the cause of action is for the balance of moneys lent by the

respondent to the appellants. It was conceded that the moneys, for which the respondent sued, had been lent to the appellants and that they failed to repay them when demand was made. Indeed, it was

contended that because of an alleged failure to comply with requirements of the Bills of Exchange Act,

to which Helman J has referred, there was no obligation to repay the moneys lent. The respondent, of

course, did not bring action upon bills of exchange allegedly dishonoured by the appellants; it brought

action only for repayment of moneys admittedly lent and admittedly not repaid upon demand made in

accord with the written agreement under which the loan was made. The bills of exchange were merely

given by the appellants as part of the security for the loan.

I am unpersuaded in the circumstances that the appellants have any really arguable grounds

of appeal against the granting of summary judgment upon the specially endorsed writ of summons in this

matter.

I agree that the application should be dismissed.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane

Appeal No. 120 of 1995

Before Pincus J.A.

Davies J.A.

Helman J.

[Muirhead & Anor v. Commonwealth Bank of Australia]

BETWEEN:

GEORGE ARTHUR ROBERT MUIRHEAD AND

STEPHANIE SUSAN MUIRHEAD

Appellants/Defendants

AND:

COMMONWEALTH BANK OF AUSTRALIA

Respondent/Plaintiff

REASONS FOR JUDGMENT - HELMAN J.

Judgment delivered the 8th day of August 1995

On June 5, 1995 judgment was given in the Supreme Court against the appellants, Mr and Mrs

Muirhead, for $1,722,984.49 and costs, on an application for summary judgment.

The respondent's claim was for money lent. The sum for which judgment was given was arrived

at as the balance due after allowing for the proceeds of a receiver's sale of the appellants' properties.

The money was lent in a number of ways, one of which was pursuant to bill discount facilities.

On June 13, 1995 the respondent filed an application for the issue of a bankruptcy notice in the
Federal Court claiming the amount of the judgment. On June 15, 1995 the respondent filed a writ of

fieri facias in the Supreme Court requesting the sheriff to execute the writ against the property of the

appellants.

The appellants instituted their appeal on June 15, 1995 and now seek an order that execution

of the judgment be stayed pending determination of the appeal.

Mr Fitzgibbon, who appeared for the appellants on this application, referred to two matters

which he said showed the strength of the appellants' case on the appeal: first the absence of evidence

of any notice of dishonour of the bills relied on by the respondent; and secondly, the absence of Mr

Muirhead's signature on the bills.

The first point was based chiefly on s. 54 of the Bills of Exchange Act, it being asserted that it

was essential to the respondent's case to have proved that notices of dishonour of the relevant bills had

been given. That contention was rejected by the learned Judge at first instance who accepted an

argument advanced by the respondent that notices of dishonour were unnecessary since the respondent

was entitled to rely on certain provisions of the appellants' application for accommodation, which

became part of the agreement between the appellants and the respondent.

The second point is based upon s. 97(1) of the Bills of Exchange Act. It too was argued before

his Honour and he rejected it, concluding that Mrs Muirhead had signed the bills for herself and on

behalf of her husband in such a way as to satisfy the requirements of s. 97(1).

To justify departure from the ordinary rule that a successful litigant is entitled to the fruits of

litigation pending the determination of an appeal special or exceptional circumstances must be shown

- see, e.g., Federal Commissioner of Taxation v. Myer Emporium Limited [No. 1] (1986) 160 C.L.R.

220, and Manfal Pty Ltd (In liquidation) v. Trade Practices Commission (1990) 65 A.L.J.R. 256.

Mr Fitzgibbon demonstrated that his clients have an arguable case, and that is putting it at its

highest, I think. But even if it could be shown to be a strong case that would not be sufficient

justification for granting the stay sought, because, as Mr Fitzgibbon correctly conceded, a strong case

for an appellant does not constitute a special or exceptional circumstance.

The question then is whether it has been shown that other circumstances exist which would

render the case one in which the court should exercise its discretion in the appellants' favour.

In the appellants' affidavit filed in support of this application they say they believe that a stay

would cause little or no prejudice to the respondent. They swear that the only assets they have are

"secondhand furniture and effects of little or no value along with personal possessions of no monetary

value". They assert that bankruptcy proceedings to which the judgment exposes them will deprive them

of control of this and other litigation pending against the respondent. In addition they say that

bankruptcy would seriously prejudice current business negotiations being carried on behalf of

Mr Muirhead and that that prejudice would deprive him of a livelihood. Mr Fitzgibbon elaborated the

appellants' fears by submitting that creditors other than the respondent could proceed against the

appellants in reliance on the respondent's attempts to enforce the judgment. No details of the current

business negotiations or of the possible claims of other creditors were, however, given, leaving the

appellants' claims about those matters as bare assertions of possible prejudice. Special circumstances

will exist where, for any reason, there is a real risk that it will not be possible for a successful appellant

to be restored to his or her former position if the judgment appealed against is executed - see Federal

Commissioner of Taxation v. Myer Emporium Ltd [No. 1], supra, at p.223. The only risk of that kind

in this case arises from the possibility of bankruptcy. But the Federal Court has control of any

bankruptcy proceedings and will no doubt, if it is appropriate to do so, exercise its powers to protect the appellants pending the determination of this appeal All things considered then, I conclude that the

appellants have failed to show any proper basis for the order they seek from this Court.

The application should be refused.