Penson v Titan National Pty Limited

[2015] NSWCA 108

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Penson v Titan National Pty Limited [2015] NSWCA 108
Hearing dates:	20 April 2015
Date of orders:	20 April 2015
Decision date:	20 April 2015
Before:	JC Campbell AJA
Decision:	Application for ex parte stay refused
Catchwords:	APPEAL - application for stay on ex parte basis – relevant considerations – whether appropriate to grant stay in circumstances
Legislation Cited:	District Court Act 1973 (NSW), s 127 Uniform Civil Procedure Rules 2005 (NSW), rr 18.4, 36.16
Cases Cited:	Muldoon v Church of England Children’s Homes Burwood [2011] NSWCA 46; 80 NSWLR 282
Category:	Procedural and other rulings
Parties:	Shirley Penson (Applicant) Titan National Pty Limited (First Respondent) Kathryn Wood-Weber (Second Respondent)
Representation:	Counsel: In person (Applicant) No appearance (First and Second Respondents) Solicitors: Pure Legal (First and Second Respondents)
File Number(s):	2014/373028
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2014] NSWDC 219 Date of Decision: 1 May 2014, 7 May 2014, 1 August 2014 (Balla DCJ); 19 August 2014, 9 October 2014, 21 November 2014 (Gibson DCJ) File Number(s): 2009/337626; 2014/137439; 2014/017976

Judgment

1. JC CAMPBELL AJA: There is in the court an application by Ms Penson for leave to appeal from various orders that were made in the District Court of New South Wales. The leave to appeal is sought against orders in three sets of proceedings, 2014/137439, 2014/017976, and 2009/337626. The particular orders concerning which leave to appeal is sought are ones that were made on 1 May 2014, 7 May 2014, 1 August 2014 by Judge Balla, 19 August 2014 by Judge Gibson, 9 October 2014 by Judge Gibson, and 21 November 2014 by Judge Gibson.

2. The origin of all of the orders is some proceedings in which Aquaqueen Pty Ltd, a company that appears to be under the control of Ms Penson, sued Titan National Pty Ltd and Ms Wood‑Weber concerning the circumstances in which a lease from Titan National to Aquaqueen had come to an end. Ms Wood‑Weber was an officer and shareholder in Titan. On 24 June 2011 Judge Williams made some orders in those proceedings, ordering costs against Aquaqueen and Ms Penson jointly and severally.

3. In November 2012 the successful parties applied for assessment of those costs, claiming a little more than $121,000. The assessment issued on 1 October 2012, and reduced the amount to a little more than $111,000.

4. Ms Penson was dissatisfied with that decision and requested that a Costs Review Panel reconsider it. On 11 December 2013 the Costs Review Panel dismissed the appeal to it.

5. From that decision of the Costs Review Panel there was a further appeal granted by leave of the District Court to the District Court. That appeal was decided by Judge Gibson in her judgment of 30 May 2014.

6. According to that judgment, the quantum that was in dispute on the appeal to Judge Gibson amounted, at the highest, to less than $2,100. Her Honour dismissed the appeal and ordered the plaintiffs to pay the defendant’s costs.

7. In 2014 there were various other interlocutory motions, and two sets of proceedings, initiated. The sets of proceedings were the ones with the 2014 file number that I have mentioned earlier.

8. On 19 August 2014 there was a decision by Judge Gibson concerning some orders that were sought by the defendants for costs on an indemnity basis and some gross sum costs orders. On that day her Honour dismissed proceedings 2014/137439 and 2014/017976.

9. There was another judgment of Judge Gibson concerning costs on 9 October 2014. That was a judgment given after a hearing at which Ms Penson was not present. Ms Penson applied to have the judgment of Judge Gibson of 9 October set aside, on the ground that it was given in Ms Penson’s absence. On 21 November 2014 Judge Gibson dismissed that motion and ordered the applicants, Aquaqueen and Ms Penson, to pay the costs of the motion as a lump sum of $2,000.

10. A summons seeking leave to appeal against five of the six orders I have mentioned was filed in the Court of Appeal on 23 February 2015. It was amended on 13 April 2015, to add an additional judgment to those appealed against. By a notice of motion filed in the application for leave to appeal proceedings on 13 April 2015 Ms Penson sought a stay of the six judgments appealed against. That notice of motion was listed for hearing before me today.

11. There was no appearance today on the notice of motion for the respondents to the application for leave to appeal. Ms Penson filed in court an affidavit showing that the summons seeking leave to appeal and the white book were served on the solicitors who had acted for the respondents in the District Court.

12. I inquired of Ms Penson whether the notice of motion had been served on the respondents to it, and she informed me that it had. Though there was no affidavit of service, in support of the notice of motion she tendered a letter of 14 April 2015 that she had written to the respondents, care of the solicitors who had acted for them in the court below. That letter enclosed the notice of motion of 13 April 2015, and Ms Penson’s affidavit of 13 April 2015.

13. She also tendered an Express Post notification of delivery of those documents, showing that they had been delivered on Friday 17 April 2015.

14. Uniform Civil Procedure Rules 18.4 (“UCPR”) requires that notice of motion must be served at least three days before the date fixed for the motion. That has clearly not been complied with. Ms Penson nonetheless, sought a stay on an ex parte basis.

15. There are several difficulties that stand in the way of granting that application. I will assume, without deciding, that in a sufficiently urgent case the Court would have jurisdiction to grant a stay on an ex parte application. However, in the present case it is not only leave to appeal that would be needed, if the various decisions to which the summons seeking leave to appeal relate were to be set aside. As well, concerning at least some of them, an extension of time would be needed.

16. The dismissal of proceedings 2014/137439 and 2014/017976 was effective at the time the orders effecting those dismissals were pronounced on 19 August 2014, even though the District Court retained power to set aside or vary that order if approached in time. When there has been no setting aside or variation of the orders, the orders dismissing those proceedings had as their effective date 19 August 2014. Similarly, the order of 9 October 2014 had as its effective date 9 October 2014, in the circumstances where the Court has declined to set aside or vary it under UCPR 36.16. The material before me is unenlightening about the nature of the earlier orders or the circumstances in which they were given, but an extension of time to seek to appeal would be needed concerning at least the orders of 19 August and 9 October.

17. Before granting a stay, the court needs to be satisfied that there is a prima facie case that an extension of time will be granted and that leave to appeal will be granted. It also needs to be satisfied that the balance of convenience favours the grant of the stay.

18. Before leave to appeal is granted, the Court needs to be satisfied that it is an appropriate case for appeal. The smallness of some of the amounts involved in the substantive disputes in the present case would be a significant obstacle to overcoming the reluctance of the Court to grant leave to appeal concerning small sums of money. I recognise that some tens of thousands of dollars of costs have flowed from some of the decisions that are sought to be attacked, but it is the amount of the decision that is attacked that is the more important amount, in my view.

19. Before granting an extension of time, the Court needs to take into account the length of the delay, the reasons for the delay, whether the applicant has a fairly arguable case or not, and the extent of any prejudice suffered by the respondent. The Supreme Court has made an order for the winding up of Aquaqueen. There are writs of execution that have been issued against Ms Penson personally. I proceed on the basis that she would be likely to suffer significant prejudice if those writs were to be executed. However, there is no evidence of an imminent risk that the writs will be executed, which could justify the grant of exparte relief.

20. As well, prejudice is only one of the factors that needs to be taken into account. The most significant factor, in my view, is that I am not persuaded on the material presently before me that she has made out a prima facie case for extension of time and for leave to appeal.

21. There is also an additional problem, which I mention at this stage. Any appeal to this Court from the District Court lies pursuant to s 127 of the District Court Act 1973 (NSW). It lies concerning a judgment or order that has been made in an “action” in the District Court. The word “action” in s 127 bears a special meaning. It does not include statutory appeals to the District Court from other jurisdictions: Muldoon v Church of England Children’s Homes Burwood [2011] NSWCA 46; 80 NSWLR 282 at [11], at least in most cases. An appeal to the District Court from a Costs Review Panel is a statutory appeal.

22. I refrain from making any decision today that the Court lacks jurisdiction, but nothing has been put to me that suggests that there might be an argument likely to succeed, to the effect that the Court has jurisdiction concerning any of the orders that relate to the appeal from the Costs Review Panel.

[At this stage a legal representative of the respondents entered the Court].

23. In all those circumstances, it does not seem to me to be an appropriate case to accede to Ms Penson’s application for an ex parte stay of the various judgments or orders in relation to which leave to appeal is sought.

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Decision last updated: 24 April 2015