Remta v CBFC Ltd
[2000] WASCA 307
•20 OCTOBER 2000
REMTA -v- CBFC LTD & ORS [2000] WASCA 307
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 307 | |
| Case No: | FUL:138/2000 | 18 OCTOBER 2000 | |
| Coram: | MASTER BREDMEYER | 20/10/00 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| PDF Version |
| Parties: | PETER JOHN AUGUSTIN REMTA CBFC LTD (ACN 008 519 462) RONALD EDWARD BARRETT ERNEST BARRY MAHER |
Catchwords: | Appeal Stay of execution pending determination of the appeal |
Legislation: | Rules of the Supreme Court (WA), O 47 r 13(1)(a) and O 63 r 15 |
Case References: | Linotype-Hell Finance Ltd v Baker [1992] 4 All ER 887 Ross & Anor v Carvallio & Anor, unreported; SCt of WA (Anderson J); Library No 960043; 31 January 1996 State Bank of Victoria v Parry [1989] WAR 240 Bridge Pump Co Pty Ltd v Fazio & Ors, unreported; SCt of WA; Library No 980591; 2 October 1998 Burton v Zurich Bay Holdings Pty Ltd [1999] WASCA 211 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Appellant
AND
CBFC LTD (ACN 008 519 462)
First Respondent
RONALD EDWARD BARRETT
Second Respondent
ERNEST BARRY MAHER
Third Respondent
Catchwords:
Appeal - Stay of execution pending determination of the appeal
Legislation:
Rules of the Supreme Court (WA), O 47 r 13(1)(a) and O 63 r 15
Result:
Application dismissed
(Page 2)
Representation:
Counsel:
Appellant : Mr M D Cuerdon
First Respondent : Mr A J McLean
Second Respondent : Mr A J McLean
Third Respondent : Mr A J McLean
Solicitors:
Appellant : Hammond Worthington
First Respondent : Corrs Chambers Westgarth
Second Respondent : Corrs Chambers Westgarth
Third Respondent : Corrs Chambers Westgarth
Case(s) referred to in judgment(s):
Linotype-Hell Finance Ltd v Baker [1992] 4 All ER 887
Ross & Anor v Carvallio & Anor, unreported; SCt of WA (Anderson J); Library No 960043; 31 January 1996
State Bank of Victoria v Parry [1989] WAR 240
Case(s) also cited:
Bridge Pump Co Pty Ltd v Fazio & Ors, unreported; SCt of WA; Library No 980591; 2 October 1998
Burton v Zurich Bay Holdings Pty Ltd [1999] WASCA 211
(Page 3)
1 MASTER BREDMEYER: This is an application by the appellant for a stay of execution pending the determination of an appeal. Summary judgment was entered against Mr Remta by Master Sanderson on 26 July 2000 in the sum of $3,211,459.59 as at 4 August 2000, together with interest thereon at the rate of $898.47 per day from and including 5 August 2000 until payment. Mr Remta was one of three guarantors of a loan by CBFC Ltd - an arm of the Commonwealth Bank of Australia - to Drilling Services of Australia Pty Ltd. The application is made under O 47 r 13(1)(a) "that by reason of special circumstances it is inexpedient to enforce the judgment or order" and, under O 63 r 15, which provides that "except so far as the Full Court or a Judge may direct an appeal shall not operate as a stay of execution ... ". That latter power has been also delegated to a Master by O 63 r 18.
2 Mr Remta and his wife have both sworn affidavits in support of the application setting out their assets and liabilities. Mr Remta is not impecunious but his net assets fall very much short of the large judgment debt.
3 To get a stay under either rule, Mr Remta needs to show special circumstances. What are they? The respondent has said that it proposes to enforce the judgment by a bankruptcy notice against Mr Remta. Mr Remta's counsel says that bankruptcy is a quasi-criminal procedure and a great stigma to the bankrupt. It is almost unfair on Mr Remta if he wins the appeal. Apart from this debt, Mr Remta is able to pay his debts as they fall due. Mr Remta is a director of a number of companies and he would lose those directorships as a result of bankruptcy: s 206B(3) of the Corporations Law. He earns director's fees of approximately $10,000 per annum from one company, City View Corporation Ltd. This income would cease. He also earns income of approximately $50,000 per annum from consultancy fees. Although I have heard no evidence on this, I consider that this income is likely to cease if he is made bankrupt. The risk of bankruptcy is not ordinarily a reason for granting a stay: see State Bank of Victoria v Parry [1989] WAR 240 at 245. I consider that the consequences of bankruptcy for Mr Remta are quite serious. It would cause his present income to dry up and there is medical evidence that he suffers from periodic episodes of major depression. I suspect would be unable to earn income from other sources if made bankrupt.
4 However, in addition to hardship caused by not granting a stay, the applicant for a stay needs to show that he has some prospects of success on the appeal. I quote from the headnote of Linotype-Hell Finance Ltd v Baker [1992] 4 All ER 887:
(Page 4)
- "Where an unsuccessful defendant seeks a stay of execution pending an appeal to the Court of Appeal, it is a legitimate ground for granting the application that the defendant is able to satisfy the court that without a stay of execution he will be ruined and that he has an appeal which has some prospects of success. The old rule that a stay of execution would only be granted where the appellant satisfied the court that, if the damages and costs were paid there would be no reasonable prospect of recovering them if the appeal succeeded, is now far too stringent a test and does not reflect the court's current practice."
5 I also refer to Ross & Anor v Carvallio & Anor, unreported; SCt of WA (Anderson J); Library No 960043; 31 January 1996 at 5 - 6:
"It was of course neither appropriate nor possible for the parties to fully argue out the merits of the appeal in this application. I think what the appellant is required to do in an application of this kind is to persuade the Judge that the appeal is not 'frivolous' (Erinford Property Ltd v Cheshire County Council [1974] 1 Ch 261 per Megarry J at 268) in the sense that there is 'a reasonable ground of appeal' (Polini v Gray, Sturla v Freccia [1879] 12 Ch D 438 per Cotton LJ at 446) and that the appeal 'seems to raise an arguable point' (Jesasu Pty Ltd v Minister for Mineral Resources (1987) 11 NSWLR 110).
...
In short, if the appeal has some prospect of success and the failure to grant a stay will or may render the appeal nugatory, a stay will usually be granted."
6 I this case, I have read the brief judgment of Master Sanderson, the appeal grounds and the Guarantee signed by Mr Remta which was construed by the Master as imposing a joint and several liability. I consider the appeal has no prosects of success. On that basis, this application for a stay will be dismissed. The appellant will be ordered to pay the respondents' costs of the application in any event.
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