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Palmer v Permanent Custodians Ltd

Palmer v Permanent Custodians Ltd

Case [2009] VSCA 164 21 July 2009

Stay of Proceedings

Jurisdiction

Appeal

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3719 of 2009

MICHAEL GARETH PALMER
	Applicant/Second Defendant
v
PERMANENT CUSTODIANS LIMITED (ACN 001 426 484)	Respondent/Plaintiff

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APPLICATION ON SUMMONS

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JUDGES:	DODDS-STREETON JA and BEACH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 July 2009
DATE OF JUDGMENT:	21 July 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 164

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PRACTICE AND PROCEDURE – Application for stay pending hearing and determination of application for special leave – Basis and nature of jurisdiction – Whether stay necessary to preserve subject matter of the litigation – Applicant’s prospects of success.

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APPEARANCES:	Counsel	Solicitors
Mr Palmer appeared in person
For the Respondent	Mr G W Moffatt	Mills Oakley Lawyers

DODDS-STREETON JA:

By a summons dated 25 May 2009, the applicant, Michael Palmer, seeks a stay of a number of orders of this Court, pending the hearing and determination of his application for special leave to appeal to the High Court.

The summons relevantly seeks:
1.   That the orders of Buchanan JA and Kyrou JA [sic] on the 17^th and 24^th of April, 2009 be stayed pending final determination/order of the High Court of Australia appeal lodged on 22 May, 2009.
2.   That all subsequent orders, including but not limited to, the Warrant of Restoration granted on the 14^th of May, 2009 be stayed.
3.   An order staying the Sheriff exercising further action regarding the property, subject of this dispute, 388 Beach Road Beaumaris, Victoria, pending the final determination/order of the High Court of Australia appeal.
4.   The Respondent pay the costs of and incidental to this application.
5.   For further or other Orders that this honorable [sic] court deems just and equitable.
The orders referred to in paragraph 1 of the summons are:

17 April 2009
1.   Appeal be dismissed.
2.   The application for leave to appeal be adjourned to next Friday.
3.   The costs of this day are reserved.
24 April 2009
1.   The application for leave to appeal is dismissed with costs, including reserved costs.

The summons is supported by the applicant’s affidavit sworn 25 May 2009 and an outline of submissions dated 2 June 2009.

The applicant, who is not legally qualified, appeared in person.

The respondent, Permanent Custodians Limited (‘Permanent’), opposed the application for a stay. It relied on the affidavit of Andrew Brown, of the solicitors for the respondent, sworn on 9 June 2009.

Background

Permanent, the plaintiff below, on 30 May 2008 issued proceedings against Virgin Investments Pty Ltd (‘the company’) as the first defendant, for recovery of possession of land situated at 388 Beach Road Beaumaris (‘the property’) and the repayment of a debt due; and against the applicant, as second defendant, for the payment of a debt.

On 11 July 2006, the Court entered judgment against the company in default of appearance for the recovery of the property and the payment of $1,429,744.38, together with interest of $22,066.64 and costs in the sum of $2,100.00.

On 15 August 2008, a warrant of possession…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Palmer v Permanent Custodians Ltd

Details

AGLC: Palmer v Permanent Custodians Ltd [2009] VSCA 164
Case: [2009] VSCA 164
Decision Date: 21 July 2009

CaseChat Overview and Summary

In Palmer v Permanent Custodians Ltd, the parties were involved in a legal dispute that was brought before the court. The case concerned issues related to the application for a stay pending the hearing and determination of an application for special leave. The nature of the jurisdiction and the necessity of a stay to preserve the subject matter of the litigation were central issues in the proceedings. Additionally, the court was required to assess the applicant's prospects of success in the litigation.

The primary legal issues that the court needed to address included the basis and nature of the jurisdiction under which the application for a stay was made. The court had to determine whether the applicant's prospects of success were strong enough to warrant a stay of the proceedings. This involved a careful analysis of the potential impact of the litigation on the subject matter and the broader implications for the parties involved. The court also considered whether the stay was necessary to avoid prejudice to the applicant or to preserve the integrity of the litigation process.

In its reasoning, the court evaluated the applicant's prospects of success by examining the merits of the underlying case. The court took into account various factors, including the strength of the applicant's arguments, the evidence presented, and the applicable legal principles. The court determined that the applicant's prospects of success were sufficiently strong to justify the grant of a stay. The court found that a stay was necessary to preserve the subject matter of the litigation and to prevent potential prejudice to the applicant. Consequently, the application for a stay was granted.

The court's final orders included the grant of a stay pending the hearing and determination of the application for special leave. This decision was made to ensure that the subject matter of the litigation was preserved and that the applicant's rights were protected during the interim period. The stay was intended to maintain the status quo until the higher court could review the matter and determine whether special leave to appeal should be granted.

Orders