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 has inherent power to stay a civil judgment as defined in the Civil Judgments Enforcement Act. It has not been argued before me whether the inherent power of the court remains in circumstances where the Civil Judgments Enforcement Act speaks on the subject. I need not consider that subject further because the same principles would apply in either case. The applicants carry the onus of demonstrating that there are special circumstances: Alexander v Cambridge Credit Corp (1985) 2 NSWLR 685 and J C Scott Constructions (a firm) v Mermaid Waters Tavern Pty Ltd (No 1) [1983] 2 Qd R 243.
The first matter to be considered is whether the appeal, or part of the appeal, would be rendered nugatory if the stay is not granted. The appellant argues that if it wins the appeal, then almost certainly the costs order in favour of the first respondent would be quashed. I agree with that submission.
Thus if the costs are paid and the court quashes the costs order and the first respondent cannot repay the costs, then the Court of Appeal's order in that respect would be rendered nugatory.
The question is, however, whether the appellant has discharged the onus of establishing that there is a probability that the first respondent will not be able to repay the costs which have been paid to him. The only evidence on the point is an affidavit saying:
(a)that a Titles Office search reveals that the first respondent does not own any real estate in Western Australia; and
(b)that his solicitors have not responded to requests from the appellant's solicitors for information about his financial position or not responded to provide any information about his financial position.
I can ignore the second point because there is no obligation on the first respondent to respond to demands for information. The onus is on the applicant to establish an inability to repay. The evidence that a search carried out at the Titles Office shows that the first respondent owns no Western Australian real estate is not accompanied by any evidence about where the respondent lives, about his employment or about whether he might or might not have other assets and, in view of that lack of evidence, I can draw no conclusion that it is probable that he cannot repay the costs.
I should say that I consider it was commendable of the appellant to write to the first respondent's solicitors asking for disclosure of information about his financial position. In my view it would always be desirable in cases like this for a party seeking a stay to make such inquiry of the other side to avoid costs being wasted in further investigation if a response is forthcoming. Such enquiry and response makes unnecessary the need for intrusive investigations. However, if the other party refuses to respond to enquiry, then the applicant for a stay may have to proceed with an investigation into the respondent's financial position by whatever means are lawfully open, if there is a belief that that person will not be able to repay after a successful appeal. If such an investigation is carried out and it provides evidence, then the appellant would be able to put that information before the court.
In this case there is no evidence of any investigation. The evidence that the first respondent owns no real estate in Western Australia, accompanied by no other evidence, is not sufficient, in my opinion, to obtain a stay of the costs order. There has been plenty of time for an investigation to be carried out because the first affidavit in these particular proceedings was filed on behalf of the appellant on 19 May 2006 and it looks as though there has been time even before that to have carried out some investigation.
Thus I am not satisfied that an order quashing the costs order made by Le Miere J would be rendered nugatory. That is enough to dismiss the application but I should add something about the prospects of success in relation to the appeal.
I have read the appellant's and respondent's cases which have been filed in relation to the appeal. The Appellant's Case suggests to me that the appeal has reasonable prospects of success, as that phrase was explained by Anderson J in Yench & Anor v Carvallio, unreported; FCt SCt of WA; Library 960043; 31 January 1996 where he said:
"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)."
However, some further information has been put before me in the form of an affidavit sworn by Mrs Wilson. That reveals that the lease the subject of dispute has expired and that a new lease has been granted by the second respondent to Parking Asset Management (WA) Pty Ltd with Laurence Leslie Wilson as guarantor.
The first respondent submitted that the existence of that lease meant that the Court of Appeal could not make the orders which had been sought before Le Miere J. I do not agree that that is necessarily so, because the declarations are declarations about past events and entitlements. If the appellant had sought a decree of specific performance, then it is true that no such decree could have been obtained in circumstances where a new lease had been granted, particularly where the appellant had obtained an injunction to prevent that lease being entered into and then subsequently agreed to the lifting of that injunction which then permitted the new lease to be executed. However, the existence of the new lease will not mean that the Court of Appeal is unable to make the declaration sought if the appeal succeeded.
The application must be dismissed.