Quach v ATM Residential Pty Ltd - [2022] ACTCA 47

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Quach v ATM Residential Pty Ltd
Citation:	[2022] ACTCA 47
Hearing Date:	21 September 2022
DecisionDate:	21 September 2022
Before:	Elkaim J
Decision:	(i) The application filed by Michael Van Thanh Quach on 29 August 2022 is dismissed. (ii) The applicant is to pay the respondent’s costs of the application.
Catchwords:	APPEAL – APPLICATION – Application to stay orders made by the primary judge – where applicant submits that the respondent did not seek leave to file out of time an interlocutory application in the primary court – where the applicant submits the respondent relied upon contrary factual statements in its application – application to stay orders dismissed – costs for the respondent
Legislation Cited:	Court Procedures Rules 2006 (ACT) rr 230, 5301 Supreme Court Act 1933 (ACT) s 37J
Cases Cited:	Davey v Herbst [2011] ACTCA 27 Ferella v The Official Trustee in Bankruptcy [2015] NSWCA 81 Quach v ATM Residential [2022] ACTSC 210 Re Chief Commissioner of Police (Vic) [2005] HCA 18; 214 ALR 422
Parties:	Michael Van Thanh Quach ( Appellant) ATM Residential Pty Ltd Trading As McGrath North Canberra ( Respondent)
Representation:	Counsel Self-represented ( Appellant) J Moffett ( Respondent)
Solicitors Self-represented ( Appellant) McInnes Wilson Lawyers ( Respondent)
File Number:	ACTCA 42 of 2022
Decision under appeal:	Court/Tribunal: ACT Supreme Court Before: McCallum CJ Date of Decision: 19 August 2022 Case Title: Quach v ATM Residential Pty Ltd Citation: [2022] ACTSC 210 Court File Number: SC 40 of 2022

Elkaim J:

I am sitting in this matter as a single judge of appeal pursuant to s 37J of the Supreme Court Act 1933 (ACT).

For convenience I will refer to Michael Van Thanh Quach as the applicant and to ATM Residential Pty Ltd as the respondent.

On 10 March 2022 the applicant commenced proceedings against the respondent. On 27 June 2022 the Registrar made an order that any application in proceeding to be filed by the respondent, should be filed by 13 July 2022.

On 19 July 2022 the respondent filed an application in proceeding seeking an order that it be removed as a party pursuant to r 230 of the Court Procedures Rules 2006 (ACT).

The respondent’s application was heard by McCallum CJ on 8 August 2022. The decision was delivered on 19 August 2022 (Quach v ATM Residential [2022] ACTSC 210).

McCallum CJ made the following orders:

(1) Pursuant to r 230 of the Court Procedures Rules, remove ATM Residential Pty Ltd as the defendant to the proceedings;
(2) Order that plaintiff pay the defendant’s costs;
(3) Dismiss the proceedings.

On 23 August 2022 the applicant filed a notice of appeal from the above decision. On 29 August 2022 he filed an application in proceeding seeking a stay of the orders made on 19 August 2022.

The application is supported by two affidavits from the applicant, affirmed on 1 August 2022 and 23 August 2022 respectively.

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.

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Details

Case: [2022] ACTCA 47
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Michael Van Thanh Quach (the applicant) for a stay of orders made by the Supreme Court of the Australian Capital Territory on 19 August 2022. The primary judge, McCallum CJ, had ordered that ATM Residential Pty Ltd (the respondent) be removed as a party to the proceedings, that the applicant pay the respondent's costs, and that the proceedings be dismissed. The applicant sought to stay these orders pending his appeal.

The court was required to determine whether the applicant had demonstrated sufficient grounds to warrant the exercise of discretion in granting a stay of the primary judge's orders. Specifically, the applicant raised two grounds for the stay: first, that the respondent's application to be removed as a party was filed out of time and without leave, contrary to a Registrar's order; and second, that the respondent's application relied on contradictory factual statements. The court also considered the principles for granting a stay pending appeal, which require the applicant to show an arguable case and that the appeal would be rendered of no effect or utility without the stay.

The court reasoned that while the applicant had raised an arguable ground concerning the respondent's late filing, he had failed to establish that the appeal would be rendered of no effect or utility if a stay was not granted. The applicant's submissions regarding prejudice, assistance to the court, and the subpoena process were found to be unconvincing. The court also noted that the applicant's reliance on the High Court decision in *Re Chief Commissioner of Police (Vic)* was misplaced as it concerned supplementary submissions and evidence, not the late filing of an application. The allegations of contradictory factual statements were considered matters to be agitated on appeal, not grounds for a stay.

Consequently, the application for a stay was dismissed. The applicant was ordered to pay the respondent's costs of the application.

Orders