Secure Parking (WA) Pty Ltd v Wilson

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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

  1. 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. 

  2. 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.

  3. The appellant contends that the Court still…

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Details
Case
[2006] WASCA 135
Decision Date

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

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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