Secure Parking (WA) Pty Ltd v Wilson - [2006] WASCA 135

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: SECURE PARKING (WA) PTY LTD -v- WILSON & ANOR [2006] WASCA 135

CORAM: PULLIN JA

HEARD: 16 JUNE 2006

DELIVERED : 16 JUNE 2006

FILE NO/S: CACV 141 of 2005

BETWEEN: SECURE PARKING (WA) PTY LTD (ACN 073 500 160)
Appellant
AND
ALFRED KARL WILSON
First Respondent
NULLAGINE INVESTMENTS PTY LTD
Second Respondent

Catchwords:

Practice and procedure - Application for stay of costs order pending appeal - Evidence needed to support claim of inability to repay - Turns on own facts

Legislation:

Civil Judgments Enforcement Act 2004 (WA)

Result:

Application for stay dismissed

Category: B

Representation:

Counsel:

Appellant:     Mr M J McPhee
First Respondent           :     Mr M H Zilko SC
Second Respondent      :     Mr M H Zilko SC

Solicitors:

Appellant:     Michell Sillar McPhee
First Respondent           :     Tottle Partners
Second Respondent      :     Tottle Partners

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

Alexander v Cambridge Credit Corp (1985) 2 NSWLR 685
J C Scott Constructions (a firm) v Mermaid Waters Tavern Pty Ltd (No 1) [1983] 2 Qd R 243
Yench & Anor v Carvallio, unreported; FCt SCt of WA; Library 960043; 31 January 1996

Case(s) also cited:

Cory v Thames ironworks & Shipbuilding Co Ltd (1863) LR 3 QB 181
Croney v Nand [1999] 2 Qd R 342
Eastland Technology Australia Pty Ltd & Ors v Whisson & Ors (2003) 28 WAR 308
Erinford Property Ltd v Cheshire County Council [1974] 1 Ch 261
Federal Commissioner of Taxation v Myer Emporium (No 1) (1986) 160 CLR 220
Fritz v Hobson (1880) 14 Ch D 542
Jesasu Pty Ltd v Minister for Mineral Resources (1987) 11 NSWLR 110
King v Poggioli (1923) 32 CLR 222
McBride v Sandland (No 2) (1918) 25 CLR 369
Nawab Sidhee Nuzur Ally Khan v Rajah Oojoodhyaram Khan (1865) 14 WR 250
Oakacre Ltd v Claire Cleaners (Holdings) Ltd [1981] Ch 197
Polini v Gray Sturlan v Freccia [1879] 12 Ch D 438
State Bank of Victoria v Parry [1989] WAR 240
The Annot Lyle (1886) 11 PD 114
Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672
Wilson v Church (No 2) (1879) 12 Ch D 454

PULLIN JA: The appellant sued the respondents in the Supreme Court seeking a declaration that the first respondent had assigned a lease to the appellant and that the second respondent, the lessor, had consented to the assignment or should be estopped from denying that it did consent. Le Miere J dismissed the appellant's action and ordered the appellant to pay each respondent its costs. The first respondent has taxed its costs and now seeks to enforce payment.
The appellant seeks a suspension of the costs order pending the hearing of the appeal under s 15 of the Civil Judgments Enforcement Act 2004 (WA). Section 15(3) states that the Court may only make such an order if there are special circumstances justifying the suspension order.
The appellant contends that the Court still…

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.

Keep reading for free

Create a free CaseChat account to read Secure Parking (WA) Pty Ltd v Wilson and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2006] WASCA 135
Decision Date: 16 JUNE 2006

CaseChat Overview and Summary

Secure Parking (WA) Pty Ltd brought an application for a stay of a costs order pending an appeal in the Federal Circuit Court. The respondent, Wilson, had applied for a stay of a previous costs order on the basis of his inability to pay. The court was tasked with determining whether the application for a stay should proceed, pending the appeal, and whether Wilson had provided sufficient evidence to support his claim of inability to pay. The court had to assess the specific circumstances of Wilson's financial position and whether his evidence was sufficient to warrant a stay of the costs order.

The court found that the application for a stay of the costs order pending appeal hinged on the respondent's ability to pay the costs. It was necessary to evaluate the sufficiency and adequacy of the evidence provided by Wilson in support of his claim of financial hardship. The court considered that the determination of such an application was highly fact-specific and required a careful assessment of the evidence presented by Wilson. It was emphasised that each case would turn on its own facts, and the court would not be swayed by a generic or speculative statement of financial hardship.

The court concluded that Wilson had not provided sufficient evidence to support his claim of inability to pay. The evidence provided was deemed inadequate to justify a stay of the costs order pending the appeal. The court noted that the onus was on the respondent to demonstrate a genuine inability to pay, and the evidence presented fell short of this requirement. The application for a stay was therefore dismissed, and the costs order remained in effect pending the outcome of the appeal. The court did not make any further orders regarding the appeal.

Orders