Nigam Trading as S C Nigam & Co v Harm

[2009] WASCA 209

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   NIGAM Trading As S C NIGAM & CO -v- HARM [2009] WASCA 209

CORAM:   NEWNES JA

HEARD:   17 NOVEMBER 2009

DELIVERED          :   17 NOVEMBER 2009

PUBLISHED           :  19 NOVEMBER 2009

FILE NO/S:   CACV 105 of 2009

BETWEEN:   SHARAD CHANDRA NIGAM Trading As S C NIGAM & CO

Appellant

AND

YVONNE HARM
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :SCOTT DCJ

Citation  :HARM -v- SHARAD CHANDRA NIGAM T/as S C NIGAM & CO [2009] WADC 117

File No  :CIV 820 of 2003

Catchwords:

Practice and procedure - Appeal - Application for stay of execution of judgment below pending outcome 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:     Mr G P Bourhill

Respondent:     Mr K J Bradford

Solicitors:

Appellant:     Lavan Legal

Respondent:     Bradford & Co

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

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

Gavalas v Singh [2001] VSCA 23; (2001) 3 VR 404

Gett v Tabet [2009] NSWCA 76

Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203

Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222

Rufo v Hosking [2004] 61 NSWLR 678

Smolarek v Brian Keith McMaster As Administrator of Eznut Pty Ltd [2006] WASCA 216

TCN Channel 9 Pty Ltd v Antoniadis [No 2] [1999] NSWCA 104; (1999) 48 NSWLR 381

Vosebe Pty Ltd t/as Batemans Bay Window and Glass v Bakavgas [2008] NSWCA 55

1. NEWNES JA:  On 17 November 2009, I dismissed an application by the appellant for an order suspending the enforcement of a judgment of Scott DCJ in the District Court pending the outcome of the appellant's appeal against the judgment.

2. In the action, the respondent alleged that the appellant was negligent in failing properly to investigate a possible claim by the respondent against a medical practitioner, including obtaining expert medical opinion, and to advise her of the merits of such a claim.  The respondent also alleged that the appellant was negligent in that, having caused a writ of summons against the doctor to be issued within time, the appellant failed to serve it before the writ became invalid for service under the Rules of the Supreme Court 1971 (WA). The appellant denied that he was negligent in any respect and did not admit that the respondent had a meritorious claim against the doctor.

3. The trial judge found that the appellant was negligent.  He concluded that the respondent had lost the chance of a successful claim against the doctor.  His Honour assessed that chance at 40% and on that basis awarded the respondent damages in the sum of $200,000. 

4. The appellant has appealed against that decision.  The appellant says the trial judge should have found that the respondent had not proved on the balance of probabilities that she would have succeeded in an action against the doctor and therefore she had lost nothing of value.  The appellant also says if the respondent had been afforded the chance to pursue the action against the doctor she would have elected to do so only if she was advised that she had a good prospect of success and it is probable she would never have received such advice.

5. The appellant seeks a stay of the judgment until the appeal is determined, on the basis that if he is successful on the appeal he is unlikely to be able to recover the judgment sum from the respondent, or at least he would be unlikely to be able to do so without substantial difficulty and expense.

6. Section 15(1)(b) of the Civil Judgments Enforcement Act 2004 (WA) (the Act) provides, relevantly, that a person against whom a judgment is given may apply to the court that is dealing with an appeal against the judgment for an order suspending the enforcement of all or part of the judgment. By s 15(3), on such an application the court may only make such an order if there are 'special circumstances' that justify doing so. The onus of showing special circumstances lies on the appellant.

7. The principles applicable to an application under s 15 are not materially different from those which applied to an application for a stay of execution before the introduction of the Act:  see Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203 [3]; Smolarek v Brian Keith McMaster As Administrator of Eznut Pty Ltd [2006] WASCA 216 [33]. The principles which are generally applied on such an application were summarised by Murray and Parker JJ in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9].

8. It is unnecessary for present purposes to discuss those principles in any detail.  Suffice it to say, a stay of execution pending an appeal may be granted if the appellant appears to have reasonable prospects of success on the appeal and there is a real risk that, if a stay is not granted and the judgment sum is paid, the appellant will be unable to recover the money if the appeal is allowed:  see TCN Channel 9 Pty Ltd v Antoniadis [No 2] [1999] NSWCA 104; (1999) 48 NSWLR 381; Vosebe Pty Ltd t/as Batemans Bay Window and Glass v Bakavgas [2008] NSWCA 55 [21] ‑ [26]; Professional Services of Australia Pty Ltd v Computer Accounting and Tax Pty Ltd [2008] WASCA 222 [22].

9. The appellant contended that he has a strong case on the appeal, based on the recent decision of the Court of Appeal of New South Wales in Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 - a 'loss of a chance' claim in a medical negligence case - in which the court declined to follow its earlier decision in Rufo v Hosking [2004] NSWCA 391; (2004) 61 NSWLR 678 and the decision of the Court of Appeal of Victoria in Gavalas v Singh [2001] VSCA 23; (2001) 3 VR 404, concluding that damages should not be awarded for the loss of a chance in medical negligence cases. Counsel for the appellant, quite properly, drew attention to the fact that the decision in Gett is the subject of an appeal to the High Court, special leave to appeal having been granted.  I note in passing that argument on the appeal took place on 12 and 13 November 2009.  The High Court has reserved its decision.

10. I do not think it is necessary to go into the merits of the appeal.  Although counsel for the respondent expressed a quite different view about the appellant's prospects of success, ultimately I do not think it was seriously in contest that for the purposes of this application it can be accepted that the appellant has reasonable prospects of success. 

11. The respondent's financial circumstances are set out in an affidavit she swore in opposition to the application.  The respondent has been on a disability pension since 1992.  It appears from her affidavit that she is unlikely to return to the workforce in the near future, if at all.  The respondent owns a residential property in Kenwick.  She lives, however, in rented accommodation as the house on the property was damaged by flood water and apparently is currently uninhabitable.  The respondent says that the house is of little value but she believes the value of the land to be in excess of $300,000.  The property is encumbered by a mortgage to the Commonwealth Bank in a sum of approximately $70,000.  The respondent says she is making the required repayments under the mortgage.  I was informed by counsel for the appellant that, enquiries having been made, the appellant does not take issue with the respondent's estimate of the value of the land. 

12. The respondent says that on receipt of the judgment sum it is her intention to use some of the money for treatment in the hope of a cure for what she describes as her chronic pain and, in respect of the balance, to sell the Kenwick property and purchase a better property with greater equity in it. 

13. I am not persuaded that, on those facts, special circumstances exist which would justify suspending enforcement of the judgment.  The respondent has available in the form of the Kenwick property an asset worth at least some $230,000.  Moreover, there is no evidence to suggest that the respondent will dissipate all or a substantial portion of the judgment sum upon its receipt. 

14. It was suggested, it seemed to me rather faintly, by counsel for the appellant that if the respondent were to purchase another property it would place the appellant in an awkward position if he had to levy execution against the respondent's home in order to recover the judgment sum following a successful appeal.  I do not think that that is a difficulty which constitutes 'special circumstances' under the Act.

15. It was for those reasons that I dismissed the appellant's application.