SAS Financial Services Pty Ltd v TREW

[2006] WASCA 156

SAS FINANCIAL SERVICES PTY LTD & ORS -v- TREW & ANOR [2006] WASCA 156

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASCA 156
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:85/2006	Heard:	28 JULY 2006
Coram:	McLURE JA	Delivered:	28/07/06
No of pages:	3	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	SAS FINANCIAL SERVICES PTY LTD SAS GLOBAL LIMITED (ACN 088 999 857) PHILIP ANTHONY MEAGHER JEFFEREY JOHN TREW JOAN MAUREEN TREW
Catchwords:	Practice and procedure Application to stay order that appellants file and serve defences Turns on own facts
Legislation:	Nil
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SAS FINANCIAL SERVICES PTY LTD & ORS -v- TREW & ANOR [2006] WASCA 156 CORAM : McLURE JA HEARD : 28 JULY 2006 DELIVERED : 28 JULY 2006 FILE NO/S : CACV 85 of 2006 BETWEEN : SAS FINANCIAL SERVICES PTY LTD

First Appellant

SAS GLOBAL LIMITED (ACN 088 999 857)
Second Appellant

PHILIP ANTHONY MEAGHER
Third Appellant

AND

JEFFEREY JOHN TREW
First Respondent

JOAN MAUREEN TREW
Second Respondent

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MASTER SANDERSON

File No : CIV 1740 of 2005

(Page 2)

Catchwords:

Practice and procedure - Application to stay order that appellants file and serve defences - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Appellant : Mr J P Cook
Second Appellant : Mr J P Cook
Third Appellant : Mr J P Cook
First Respondent : Mr K C Staffa
Second Respondent : Mr K C Staffa

Solicitors:

First Appellant : Mendelawitz Morton
Second Appellant : Mendelawitz Morton
Third Appellant : Mendelawitz Morton
First Respondent : Staffa Lawyers
Second Respondent : Staffa Lawyers

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

Nil

Case(s) also cited:

Nil
(Page 3)

1 McLURE JA: The appellants seek a stay of order 2 of the orders made by Master Sanderson on 3 July 2006. On that date the Master ordered that the respondents be granted leave to amend the statement of claim in terms of the minute dated 2 May 2006. Order 2 was that the appellants file and serve defences within 21 days from the date thereof. The appellants seek to appeal from the orders made by the Master.

2 The primary order is that the respondents have leave to amend the statement of claim. Order 2 is consequential on order 1. The effect of the stay sought by the appellants would be to significantly delay the progress of the action to trial. In general terms that is highly undesirable. If the appellants were to obtain leave and then are successful in their challenge to the statement of claim, they can be compensated by an order for costs thrown away.

3 There is an affidavit filed by the respondents in opposition to the stay. They say they are in their 70s and have been advised of, and understand, their exposure to costs in the event the appeal is successful. In response to the appellants' submissions in relation to damages, I note there is a claim for breach of contract. Damage is not a material element of that cause of action; nominal damages are available.

4 In the public interest in progressing actions through to trial in a timely fashion, I propose to dismiss the stay application. The order will be that the application is dismissed.