Panel Tank Technologies (Australia) Pty Ltd Formerly NAREW Holdings Pty Ltd v Pioneer Concrete (WA) Pty Ltd

[2006] WASCA 115

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   PANEL TANK TECHNOLOGIES (AUSTRALIA) PTY LTD Formerly NAREW HOLDINGS PTY LTD & ANOR -v- PIONEER CONCRETE (WA) PTY LTD [2006] WASCA 115

CORAM:   PULLIN JA

HEARD:   25 MAY 2006

DELIVERED          :   25 MAY 2006

FILE NO/S:   CACV 15 of 2005

BETWEEN:   PANEL TANK TECHNOLOGIES (AUSTRALIA) PTY LTD Formerly NAREW HOLDINGS PTY LTD

First Appellant

KEVIN ALAN BLACK
Second Appellant

AND

PIONEER CONCRETE (WA) PTY LTD
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :O'BRIEN DCJ

Citation  :PIONEER CONCRETE (WA) PTY LTD -v- NAREW HOLDINGS PTY LTD & ANOR [2005] WADC 25

File No  :CIV 666 of 2000

Catchwords:

Appeal - Application for stay pending appeal - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

First Appellant               :     No appearance

Second Appellant          :     No appearance

Respondent:     Mr K E Yin

Solicitors:

First Appellant               :     Holborn Lenhoff Massey

Second Appellant          :     In person

Respondent:     Murcia Pestell Hilliard

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

Nil

Case(s) also cited:

Nil

1. PULLIN JA:  This is an application for a stay which was lodged by the second appellant Mr Black.  The application was supported by an affidavit which was filed on 3 January 2006.  In that affidavit Mr Black sets out his arguments about why he considers that the judgment below was wrong, and contends that in any event there are some moneys available to satisfy the judgment as part of a family court property settlement between Mr Black and his wife.

2. The considerations which have to be taken into account on the stay application include whether or not the appeal might be rendered nugatory if the stay is not granted.  The onus is on the applicant for a stay to establish the grounds for the stay, and it is not enough simply to put forward arguments about why the appeal might succeed, although that is a relevant consideration.  There is nothing which has been put before me to indicate that the appeal might be rendered nugatory if the judgment sum is paid and Mr Black subsequently succeeds on his appeal.

3. An additional aspect of this application is that Mr Black contended that, without the Family Court moneys, he might be unable to satisfy the judgment.  When this matter was last before me, I pointed out what was required of Mr Black in relation to an application based on inability to pay, and an order was made that if Mr Black wanted to further this aspect of the application he would have to file an affidavit.

4. A document has been filed which is not in the form of an affidavit, so it does not depose to the information contained in what is described as a statement of financial circumstances.  The statement of financial circumstances contains a brief list of assets, debts, savings, Family Court orders, creditors, weekly income and expenses but there is no particularisation and, given Mr Black's contention from the Bar table that he had a business running, one would expect much more information about the income and expenditure in relation to that business.

5. In any event, the statement is not verified by affidavit and on that basis I am not prepared to act upon it to conclude that the stay application can be supported by an inability to pay the judgment.  For those reasons I would dismiss the application for a stay.