Sebregts v Scolaro

[2001] WASCA 165

SEBREGTS & ORS -v- SCOLARO [2001] WASCA 165

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 165
Case No:	FUL:57/2001	Heard:	25 MAY 2001
Coram:	MASTER BREDMEYER	Delivered:	29/05/01
No of pages:	4	Judgment Part:	1 of 1
Result:	Application dismissed
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Parties:	ALEXANDER SEBREGTS ELIZABETH SEBREGTS SANDRA SMITH DEAN SMITH ELIANNE SMITH KENNETH SMITH RITA ROSA SCOLARO
Catchwords:	Appeal Stay of execution pending determination of the appeal
Legislation:	Nil
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : SEBREGTS & ORS -v- SCOLARO [2001] WASCA 165 CORAM : MASTER BREDMEYER HEARD : 25 MAY 2001 DELIVERED : 29 MAY 2001 FILE NO/S : FUL 57 of 2001 BETWEEN : ALEXANDER SEBREGTS

First Appellant (First Defendant)

ELIZABETH SEBREGTS
Second Appellant (Second Defendant)

SANDRA SMITH
Third Appellant (Third Defendant)

DEAN SMITH
Fourth Appellant (Fourth Defendant)

ELIANNE SMITH
Fifth Appellant (Fifth Defendant)

KENNETH SMITH
Sixth Appellant (Sixth Defendant)

AND

RITA ROSA SCOLARO
Respondent (Defendant)

(Page 2)

Catchwords:

Appeal - Stay of execution pending determination of the appeal

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

First Appellant (First Defendant) : In person
Second Appellant (Second Defendant) : In person (Mr A Sebregts)
Third Appellant (Third Defendant) : In person (Mr A Sebregts)
Fourth Appellant (Fourth Defendant) : In person (Mr A Sebregts)
Fifth Appellant (Fifth Defendant) : In person (Mr A Sebregts)
Sixth Appellant (Sixth Defendant) : In person (Mr A Sebregts)
Respondent (Defendant) : Mr S V Forbes

Solicitors:

First Appellant (First Defendant) : In person
Second Appellant (Second Defendant) : In person (Mr A Sebregts)
Third Appellant (Third Defendant) : In person (Mr A Sebregts)
Fourth Appellant (Fourth Defendant) : In person (Mr A Sebregts)
Fifth Appellant (Fifth Defendant) : In person (Mr A Sebregts)
Sixth Appellant (Sixth Defendant) : In person (Mr A Sebregts)
Respondent (Defendant) : Paiker & Overmeire

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

Nil

Case(s) also cited:

Nil

(Page 3)

1 MASTER BREDMEYER: This is an application by the appellants for a stay of execution pending the determination of the appeal. The appellants were the defendants in a District Court action. They were sued as guarantors of rent payable by the lessee company. After a trial before Wisbey DCJ, they were ordered to pay $58,590.19 plus interest of $9,621.62. They have appealed against that decision.

2 The lodging of an appeal does not automatically produce a stay of execution. Indeed, O 63 r 15 when read with r 18, provides that an appeal shall not operate as a stay of execution, except so far as a Judge or Master otherwise orders. The case law on this, as set out in Seaman: Civil Procedure in Western Australia 63.15.1 is that the applicant for a stay needs to show, in effect, special circumstances why a stay should be granted. A number of examples are given there as to what kind of circumstance will produce a stay. In this case, the appellants contend that they are impecunious and they have deposed as to their lack of means in a related action in this Court where they are suing the ANZ Bank and the Bank in turn is counterclaiming against them for a sum of money owed. Although they are of limited means, I note that the debt is spread between six people. I further note that I think four of the six appellants are in employment and they have four properties between them which presently have a writ of fi fa lodged against them by the successful plaintiff in the District Court (the respondent to the appeal). Their lack of means is not of itself a ground for granting a stay, nor the hardship which might result to them from an order selling one of their properties to satisfy the judgment. I note that one of the properties is vacant land. In any case, with mortgages against their titles in favour of the ANZ Bank, it is not easy for the judgment creditor to sell any of those properties.

3 The second basis for a stay is that the appellants say that the other action, the one against the ANZ Bank to which I have referred, has been heard before Pidgeon J on 1 - 9 April 2001 and they are awaiting his reserved decision. If, they are successful in that judgment, I am told that they will pay the judgment debt in this matter and withdraw the appeal. I consider that neither of those two circumstances - their lack of means and the fact that they are waiting on this other judgment - justifies a stay of execution. The application for a stay is dismissed and I will order the appellants to pay the respondent's costs of this application in any event.

4 Having said that, however, I think it would be prudent for the respondent not to sell a property pending the outcome of the other action. If the appellants win that action and pay the debt that would save the

(Page 4)

respondent the time, trouble and expense of selling one of the properties. But that is entirely a commercial decision for the respondent to take.