Permanent Mortgages Pty Ltd v Vandenbergh
[2010] WASC 10 (S2)
•29 JANUARY 2010
PERMANENT MORTGAGES PTY LTD -v- VANDENBERGH [2010] WASC 10 (S2)
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2010] WASC 10 (S2) | |
| Case No: | CIV:1074/2007 | 18-20 AUGUST 2009, ON THE PAPERS & 12 MARCH 2010 | |
| Coram: | MURPHY J | 29/01/10 | |
| 7/05/10 | |||
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Final orders given in the action Application to have costs paid into court declined | ||
| B | |||
| PDF Version |
| Parties: | PERMANENT MORTGAGES PTY LTD JULES JOSEPH VANDENBERGH MARIA HUBERTINA VANDENBERGH |
Catchwords: | Practice and procedure Final orders Application for an order that successful party's taxed costs be paid into court Turns on own facts |
Legislation: | Civil Judgments Enforcement Act 2004 (WA), s 15 |
Case References: | Canvas Graphics Pty Ltd v Kodak (Australasia) Pty Ltd (Unreported, FCA, 23 January 1998) Illawong Village Pty Ltd v State Bank of New South Wales [2005] NSWSC 524 Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203 Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10 (S) Scott v Kogarah Municipal Council (1988) 65 LGRA 92 Secure Parking (WA) Pty Ltd v Wilson [2006] WASCA 135 State Bank of Victoria v Parry [1989] WAR 240 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : PERMANENT MORTGAGES PTY LTD -v- VANDENBERGH [2010] WASC 10 (S2) CORAM : MURPHY J HEARD : 18-20 AUGUST 2009, ON THE PAPERS & 12 MARCH 2010 DELIVERED : 29 JANUARY 2010 SUPPLEMENTARY
DECISION : 7 MAY 2010 FILE NO/S : CIV 1074 of 2007 BETWEEN : PERMANENT MORTGAGES PTY LTD
- Plaintiff
AND
JULES JOSEPH VANDENBERGH
MARIA HUBERTINA VANDENBERGH
Defendants
Catchwords:
Practice and procedure - Final orders - Application for an order that successful party's taxed costs be paid into court - Turns on own facts
Legislation:
Civil Judgments Enforcement Act 2004 (WA), s 15
Result:
Final orders given in the action
Application to have costs paid into court declined
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : No appearance
Defendants : No appearance
Solicitors:
Plaintiff : Solomon Brothers
Defendants : Butcher Paull & Calder
Case(s) referred to in judgment(s):
Canvas Graphics Pty Ltd v Kodak (Australasia) Pty Ltd (Unreported, FCA, 23 January 1998)
Illawong Village Pty Ltd v State Bank of New South Wales [2005] NSWSC 524
Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203
Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10 (S)
Scott v Kogarah Municipal Council (1988) 65 LGRA 92
Secure Parking (WA) Pty Ltd v Wilson [2006] WASCA 135
State Bank of Victoria v Parry [1989] WAR 240
(Page 3)
1 MURPHY J: Since my supplementary reasons in this matter (Permanent Mortgages Pty Ltd v Vandenbergh [2010] WASC 10 (S)), the parties have largely agreed final orders, including the stay of substantive relief and the stay of payment of restitution by the mother, pending any appeal. There are, however, two principal points of difference. The first is the amount of restitution payable by the mother. In particular, the bank says that the mother should not receive the benefit of any interest paid by the son prior to default. The sum in the mother's proposed minute was calculated in accordance with [51] - [56] of my supplementary reasons and I would adopt that sum. In relation to the payment of interest prior to default, the bank actually received such interest, even if it were paid by the son.
2 The other matter concerns costs. The parties agree that the mother should have her costs.
3 The mother seeks, in the conventional way, to have her costs taxed and paid by the bank; the bank proposes that the costs should be taxed and paid into court pending the outcome of any appeal that may be lodged. The bank's proposal seems to me to involve the kind of application that a party might make to stay an order pursuant to s 15 of the Civil Judgments Enforcement Act 2004 (WA). It would involve, in effect, staying the payment of costs to the mother, pending the outcome of any appeal, on terms that the costs be paid into court.
4 Section 15 of the said Act provides, relevantly:
(1) A person against whom a judgment is given may apply for an order suspending the enforcement of all or part of the judgment to -
(a) the court that gave the judgment; or
(b) a court that is dealing with an appeal against the judgment.
…
(3) On such an application, the court may only make such an order if there are special circumstances that justify doing so.
(4) A suspension order may be made for any period (including an indefinite period) and may be made on terms as to costs or otherwise.
5 The parties asked me to make a decision 'based on the correspondence' between the parties. Neither party filed affidavits or submissions.
(Page 4)
6 The solicitors for the bank, in letters to the solicitors for the mother dated 20 April and 21 April 2010, cite the case of State Bank of Victoria v Parry [1989] WAR 240 as supporting their contention that costs should be paid by the bank into court, rather than to the mother. That case was concerned with whether or not a stay of execution of summary judgment should be granted pending the determination of counterclaims against the plaintiff. Malcolm CJ was considering the degree of connection required between a claim and a counterclaim to warrant the grant of a stay, and stated the general proposition that where a counterclaim constitutes, in effect, an unconnected cross-action, it will not provide a basis for a stay (246). Summary judgment was not awarded in the present case and there is no pending 'counterclaim' in the sense referred to by Malcolm CJ in State Bank of Victoria v Parry. I do not find that case to be of any real assistance in this matter.
7 Solicitors for the bank also refer to the unreported Federal Court case of Canvas Graphics Pty Ltd v Kodak (Australasia) Pty Ltd (Unreported, FCA, 23 January 1998) where O'Loughlin J ordered the payment of damages and costs into court pending the outcome of related Supreme Court proceedings. That case too offers little assistance: there are no such related proceedings on foot in this case. Rather, there is the potential that the outcome of these proceedings will be appealed to the Court of Appeal, which raises discrete considerations.
8 The principles applicable generally to the exercise of the court's discretion to order a stay of the execution of a judgment pending the determination of an appeal were set out by McLure JA in Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203. Her Honour said [3] - [4]:
The principles applicable to the exercise of the discretion under s 15 of [the Civil Judgments Enforcement Act 2004 (WA)] are, in my view, materially the same as those that govern the disposition of an application under the Supreme Court Act 1935 and Supreme Court Rules 1971 which give the Court of Appeal the power to grant a stay of execution. Those principles are conveniently collected in the Full Court decision of Eastland Technology Australia Pty Ltd v Whisson (2003) 28 WAR 308. They are, firstly, that the successful litigant at first instance will ordinarily be entitled to enforce the judgment pending the determination of any appeal. Secondly, it is for the applicant for a stay to move the Court to a favourable exercise of its discretion. Thirdly, it will not do so unless special circumstances are shown justifying the departure from the ordinary rule.
A central issue is whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation. If that can
(Page 5)
- be demonstrated, the stay will generally still be refused unless it can be established that the appeal process has reasonable prospects of success. If that hurdle can be overcome, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant.
9 The decisions of Pullin JA in Secure Parking (WA) Pty Ltd v Wilson [2006] WASCA 135, and Bignold J in Scott v Kogarah Municipal Council (1988) 65 LGRA 92 concerned stay applications with particular reference to costs orders. It is apparent from those cases that the following considerations, inter alia, were taken into account:
(i) the mere filing of an appeal is not a sufficient basis for ordering a stay of execution of a costs order; and
(ii) the onus is on the party seeking a stay or suspension of a costs order to establish circumstances justifying the stay, or requiring a solicitor's undertaking to be given - usually, this involves proving that there is a probability that the costs, if paid, would be irrecoverable in the event that the appeal is successful.
10 The observations of Campbell J in Illawong Village Pty Ltd v State Bank of New South Wales [2005] NSWSC 524 are also apposite when the trial judge is asked to consider a stay [13]:
As I was the trial Judge, the hearing of this Notice of Motion places me in a situation where I would prefer not to have to decide whether there were reasonably arguable grounds of appeal. I indicated to counsel my embarrassment in that respect, and the argument has proceeded upon an assumption that there are reasonably arguable grounds of appeal.
11 In this matter there is no appeal on foot and no grounds of appeal to consider. Nor have the parties put on evidence addressing the considerations outlined above. In my view, an order intending to have the effect of a stay should, at least generally, and in the absence of consent, be made in the context of a stay application, based on relevant evidence and addressing relevant principles. Accordingly, I would decline the bank's proposal at this juncture and make orders in terms of the mother's minute as to costs.
12 Orders will be made in accordance with the attached schedule.
(Page 6)
SCHEDULE - ORDERS
Declaration and consequential orders
1. A declaration that:
1.1 the loan agreement between the plaintiff and defendants executed by the defendants on 20 December 2003; and
1.2 the mortgage number I822249, registered on 17 March 2004 (the Mortgage) over the property known as Lot 9, Strata Plan 20282 being the whole of the land in Certificate of Title Volume 1885, Folio 9 (the Property) executed by the defendants in favour of the plaintiff,
were obtained from the second-named defendant by the plaintiff by unconscionable dealing and conduct and/or in contravention of s 51AC of the Trade Practices Act 1974 (Cth) and ought to be set aside.
2. Subject to prior compliance with par 3:
2.1 the loan agreement be set aside ab initio as against the second-named defendant;
2.2 the Mortgage be set aside ab initio;
2.3 the plaintiff forthwith execute all documents and do all acts and things necessary to discharge the Mortgage; and
2.4 the first-named defendant forthwith complete, execute and deliver to the second-named defendant a transfer, in a registrable form, of his registered interest in the Property.
Payment
3. The second-named defendant pay to the plaintiff the sum of $54,605.43, plus interest on the sum of $54,605.43 computed daily from 22 April 2010 until payment at the rate of 8.50% per annum compounded monthly, being a daily rate of $12.72, within 60 days of the date of this order.
(Page 7)
- Dismissal
4. The plaintiff's claims against the first and second named defendants be dismissed subject to and upon performance of pars 2.3, 2.4 and 3 above.
Suspension order
5. The enforcement of orders in pars 2, 3 and 4 above be stayed until the later of:
5.1 the date immediately after the expiry of the 21 day period within which the plaintiff is permitted to institute an appeal from this judgment; or
5.2 if an appeal is instituted from this judgment, until judgment is given in the appeal.
Costs
6. The plaintiff pay the second defendant's costs of the action, including any reserved costs, to be taxed.
Liberty to apply
7. The parties have general liberty to apply.
4
5
1