Sims v Suda Ltd [No 2]
[2015] WASC 180
•3 JUNE 2015
SIMS -v- SUDA LTD [No 2] [2015] WASC 180
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 180 | |
| 03/06/2015 | |||
| Case No: | CIV:1535/2012 | 30 APRIL 2015 | |
| Coram: | PRITCHARD J | 30/04/15 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | DOUGLAS ARTHUR SIMS SUDA LTD |
Catchwords: | Application to suspend or stay the enforcement of a property search and seizure order or costs order Whether special circumstances exist Turns on own facts |
Legislation: | Civil Judgments Enforcement Act 2004 (WA), s 15 |
Case References: | Sims v Suda Ltd [2014] WASCA 113 Sims v Suda Ltd [2015] WASCA 65 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
SUDA LTD
Defendant
Catchwords:
Application to suspend or stay the enforcement of a property search and seizure order or costs order - Whether special circumstances exist - Turns on own facts
Legislation:
Civil Judgments Enforcement Act 2004 (WA), s 15
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff : In person
Defendant : Mr J R Ludlow
Solicitors:
Plaintiff : In person
Defendant : Downings Legal
Cases referred to in judgment:
Sims v Suda Ltd [2014] WASCA 113
Sims v Suda Ltd [2015] WASCA 65
- PRITCHARD J:
(This judgment was delivered extemporaneously on 30 April 2015 and has been edited from the transcript.)
1 This is an application brought by the plaintiff for an order that:
(1) The costs order of Registrar C Boyle of 12 November 2014 be stayed until extension of time to appeal be granted; and
(2) If extension of time to appeal is granted, then the costs order be stayed until the decision on appeal is made.
2 The application was made by chamber summons dated 29 April 2015, and was supported by an affidavit sworn by the plaintiff on the same date. The application has been brought on urgently because the plaintiff says that the costs order referred to in the application is the subject of a property seizure order. The plaintiff has been advised by the sheriff that the property seizure order is to be executed at a settlement of a sale of a property owned by the plaintiff today, 30 April 2015. (At the hearing today, the plaintiff advised that that settlement is, in fact, due to take place tomorrow, 1 May 2015.)
3 What is referred to in the chamber summons as 'the costs order of 12 November 2014', and which is the subject of the present application for a stay or suspension, seems to have been somewhat misleading. As a result of the interchange I had with the plaintiff during the hearing, it appears that the plaintiff seeks to suspend the operation of an order made by Registrar C Boyle on 1 December 2014, known as a 'property seizure order' (the PSO) under the Civil Judgments Enforcement Act 2004 (WA) (the Act). The PSO was made following earlier orders by the Registrar dismissing the plaintiff's action against the defendant and ordering the plaintiff to pay the defendant's taxed costs. That costs order (the Costs Order) was made on 21 February 2014. On 12 November 2014, Registrar C Boyle undertook the taxation of the bill of costs submitted following the Costs Order, and taxed the defendant's bill of costs in an amount of just over $30,000 in respect of the action.
4 It appears, then, that the plaintiff wants a suspension of the PSO, or, alternatively, a suspension or stay of the Costs Order itself, to enable him ultimately to bring an appeal against the Costs Order.
5 I have serious doubts about whether I have jurisdiction to deal with the application. In any event, even if I have jurisdiction, the plaintiff has not made out a case for the grant of an order suspending or staying either the operation of the PSO or of the Costs Order. For the reasons which follow, the application should be dismissed. These reasons for decision deal with the following matters:
1. The factual background;
2. The question of jurisdiction; and
3. Whether special circumstances exist which warrant the grant of an order suspending the operation of the PSO, or of the Costs Order.
1. The factual background.
6 Given some of the confusion as to the facts which arose from the terms of the chamber summons and the plaintiff's affidavit in support, it is appropriate to give a more detailed outline of the factual background than might otherwise be appropriate or necessary in a case of this kind. The plaintiff's supporting affidavit was, with respect, grossly deficient in setting out the relevant factual background, in identifying the decision the subject of his application, or in identifying the facts he alleged which supported the existence of special circumstances for the grant of a suspension or a stay.
7 The facts which follow were outlined by counsel for the defendant during the course of the hearing and were not, at least in general terms, disputed by the plaintiff. Insofar as they refer to matters in this Court, they reflect the documents on the Court's file which I have had the opportunity to carefully consider.
8 The action was originally commenced by writ in the District Court and was essentially an action for a breach of contract between the plaintiff and Eastland Medical Systems Ltd, a company that had engaged the plaintiff at some stage. That company has since changed its name to Suda Ltd (the defendant). The action was subsequently remitted to this Court.
9 On 21 February 2014, Registrar C Boyle struck out the action, having earlier struck out the statement of claim, and having denied the plaintiff leave to file and serve a substituted statement of claim. The Registrar ordered that the plaintiff pay the defendant's costs of the strike out application in the sum of $11,000, and of the action itself, to be taxed.
10 On 24 February 2014, the plaintiff filed an appeal against the Registrar's decision to deny leave to substitute the statement of claim and to strike out the action. Master Sanderson heard the appeal against that decision on 8 April 2014, and delivered a decision on 15 April 2014 in respect of that appeal. His Honour dismissed the appeal and ordered the plaintiff to pay the defendant's costs. In the course of his oral reasons for decision, the Master accepted a submission made by counsel for the defendant that the appeal had not been properly brought. But even if the appeal had been properly brought, the Master concluded that the Registrar's decision was correct. Accordingly, having regard to those considerations, he dismissed the appeal.
11 There was no appeal to the Court of Appeal by the plaintiff in respect of the Master's decision.
12 As I have already mentioned, on 12 November 2014, the Registrar undertook the taxation of the defendant's bill of costs in respect of the action, and the taxed bill amounted to slightly over $30,000.
13 On 1 December 2014, the defendant obtained the PSO in respect of the judgment debt for the costs of the action, as taxed by the Registrar.
14 Counsel for the defendant says that on 7 January 2015, the PSO was registered on the interest of the plaintiff in a property in Applecross. (That is the property the sale of which is the subject of the settlement due to take place tomorrow.)
15 On 16 January 2015, the plaintiff applied to this Court to suspend the enforcement of the judgment debt, pursuant to the Act. His affidavit in support of that application referred, amongst other things, to a contractual indemnity, which the plaintiff claimed meant he was indemnified by the defendant for the Costs Order obtained by the defendant against him.
16 On 30 January 2015, that application for suspension was dealt with by Registrar C Boyle. The Registrar refused the application and ordered the plaintiff to pay the defendant's costs.
17 It appears that the plaintiff then intended to appeal against that decision, but did not file a notice of appeal. Instead, the plaintiff filed a chamber summons, making an application for an extension of time to apply for leave to appeal against the judgment of the Registrar on 30 January 2015 to refuse the plaintiff's application for a suspension order (the extension of time application).
18 The extension of time application was dealt with by the Master on 3 March 2015. The Master dismissed that application. His reasons were that the appeal from the Registrar's decision was out of time, and leave was required to bring the application. The grant of leave was opposed by the respondent to the application, and the Master found that the application itself (that is, the appeal) was hopeless. The Master concluded that the decision of the Registrar was clearly right, and that there were no exceptional circumstances which would justify the grant of an extension of time, or the grant of a stay of the enforcement of the judgment. Accordingly, an extension of time would be pointless and the plaintiff's extension of time application was refused.
19 I was informed at the hearing of the present application that the plaintiff has filed an appeal in the Court of Appeal against the Master's decision of 3 March 2015. Counsel for the defendant advised that there is a hearing scheduled in the Court of Appeal on 2 June 2015 for the plaintiff to show cause why his appeal should not be dismissed.
20 As I have observed, it appears that what the plaintiff now seeks to have suspended or stayed is either the operation of the PSO, or of the Costs Order made by the Registrar on 21 February 2014.
2. The question of jurisdiction
21 When I asked the plaintiff about the basis for the Court's jurisdiction to deal with his application, he indicated that he had taken some advice from a legal practitioner and was simply told to bring the application in the general division of the Court. I do not overlook the fact that, for a self-represented litigant, these issues can produce some difficulty on occasion.
22 What was not clear, with respect, either from the plaintiff's application, or from his oral submissions, was the basis on which he says that the Court has jurisdiction to deal with the present application. It seems to me that there are some potential problems in this respect.
23 The basis upon which the plaintiff appears to seek a suspension of the PSO, if that is what he seeks to do, is under s 15(1) of the Act, which provides:
(1) A person against whom a judgment is given may apply for an order suspending the enforcement of all or part of the judgment to -
(a) the court that gave the judgment; or
(b) a court that is dealing with an appeal against the judgment.
(a) a monetary judgment; or
(b) a judgment or an order of a court that requires or has the effect of requiring a person -
(i) to give possession of any property to another person; or
(ii) to do an act, to not do an act, or to cease doing an act.
On such an application, the court may only make such an order if there are special circumstances that justify doing so.
26 It appears that the plaintiff's case is that a Registrar of this Court gave a 'judgment' in the form of the Costs Order or, alternatively, the PSO for the possession and seizure of property, that the jurisdiction of Registrars of this Court is shared by the Judges of this Court, and that that is the basis upon which the plaintiff would bring an application under s 15.
27 However, if the plaintiff's application in fact seeks to suspend the operation of the PSO, an application of that kind has already been made to a Registrar and rejected. The plaintiff does not now seek to appeal to a single judge of this Court against that decision of the Registrar. Instead, as I have already observed, he is pursuing an appeal in the Court of Appeal against a decision of the Master to refuse an extension of time in which to appeal against the Registrar's decision. It is not clear how a single judge of this court would have jurisdiction to grant a suspension order pursuant to s 15 of the Act in those circumstances, or to grant a stay of the decision the subject of that appeal.
28 For completeness, I note that if the plaintiff seeks to suspend or stay the operation of the Costs Order, that stay application would need to be brought in conjunction with an appeal against the Costs Order, and no such appeal has been brought in the general division of this Court.
3. Whether special circumstances exist which warrant the grant of an order suspending the operation of the PSO, or of the costs order
29 For present purposes, I intend to proceed on the assumption that I have jurisdiction to deal with an application under s 15 of the Act because, in my view, even if I have jurisdiction to deal with the application, special circumstances have not been shown so as to warrant the suspension of the judgment, pursuant to s 15(3) of the Act.
30 The principles in relation to what constitutes special circumstances were set out by Newnes JA in Sims v Suda Ltd,where his Honour referred to Eastland Technology Australia Pty Ltd v Whisson and to other authorities and observed:1
While there can be no hard and fast rules as to what constitutes 'special circumstances', the general principles applicable to an application under s 15 of the Act are those described in Eastland Technology Australia Pty Ltd v Whisson: see Ladang Jalong (Australia) Pty Ltd v Callander. Those applicable to an application under the rules are not materially different. In respect of an application of the present kind, the general principles were set out by Pullin JA in Tradesman Technologies Pty Ltd v Ameduri as follows:
(a) The successful litigant is ordinarily entitled to enforce a judgment pending the determination of any appeal.
(b) It is for the applicant for a stay to move the court to a favourable exercise of its discretion. Under s 15(3) [of the Act] this court may only make a suspension order if there are 'special circumstances' that justify doing so and in an application for a stay under the rules this is also a usual requirement.
(c) The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation or whether a refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. This may shortly be described as requiring the court to consider whether the right of appeal will be rendered nugatory if a stay is not granted.
(d) If it can be demonstrated that the right of appeal will be rendered nugatory if a stay is not granted, the stay will generally still be refused unless it can be established that the appeal has ultimately reasonable prospects of success.
(e) Finally, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted.
31 The plaintiff submitted that special circumstances existed in this case because, without the suspension of the PSO, the right of appeal that he has would be rendered nugatory. The basis for that submission was the contention that the plaintiff would experience financial difficulty if the funds the subject of the PSO (which I was informed was now in the amount of approximately $40,000) were seized by the defendant in the course of the settlement of the property tomorrow.
32 I do not accept the plaintiff's submission that that gives rise to a situation where the right of appeal that he has will be rendered nugatory if the suspension order is not granted. I have reached that conclusion for two reasons.
33 First, there is inadequate evidence before the Court as to the plaintiff's financial position. The plaintiff informed the Court during the course of the hearing that, while there will be funds available to he and his wife (who jointly owns the property) tomorrow - apart from funds which are to be sought by judgment creditors - his wife is entitled to the residue of the proceeds of the sale of the property. The result, the plaintiff says, is that he will have no funds available to him to seek legal representation. But there was no evidence in the plaintiff's affidavit in relation to his financial position and whether he has other income available to him or other means for obtaining legal representation. In any event, the inability to afford legal representation is not uncommon in our community, and that of itself is not a reason for concluding that a person's right of appeal would be rendered nugatory if a suspension of a judgment were not granted.
34 Furthermore, I digress to note that the plaintiff is not without experience in conducting litigation unassisted by legal counsel, a fact which was noted by the Court of Appeal in Sims v Suda Ltd.2 In making that observation, I do not suggest that the conduct of litigation by self-represented litigants is without difficulty, but merely seek to observe that the plaintiff is not entirely a novice in this respect.
35 Secondly, the plaintiff made a further submission, the upshot of which appeared to be that an appeal against the Costs Order, or against a decision to refuse suspension, would have reasonable prospects of success because he has a contractual indemnity from the defendant which means that the defendant is liable to pay any legal costs which the plaintiff is ordered to pay, even costs to the defendant itself. Consequently, the plaintiff says that the Costs Order should never have been made, or, alternatively, that the PSO should be set aside, in those circumstances.
36 The contractual provision to which the plaintiff referred was contained in a copy of a contract between him and Eastland Medical Systems Ltd (now, the defendant), which was annexed to his affidavit in support of the present application. That provision - cl 14.1 - reads:
To the maximum extent permitted by law, the Company [Eastland Medical Systems] will indemnify the Executive [the plaintiff] and keep the Executive indemnified against any Legal Proceedings and any claims of any kind made against, suffered, paid or incurred by the Executive pursuant to, arising from or in any way connected with the Executive being an officer of the Company and any act or omission by the Executive, directly or indirectly, connected therewith, or a breach by the Company of its obligations under this Deed.
37 Having only had the opportunity briefly to consider the terms of that provision, I see some difficulties for the plaintiff in advancing the proposition that he is indemnified by the defendant even for costs orders made in favour of the defendant (particularly given that this is a contract which has to operate in a commercial context). I note, in addition, that the same argument was advanced before Registrar C Boyle on 30 January 2015. The Registrar refused to accept the construction advanced by the plaintiff on that occasion. The Master also concluded that the Registrar's decision was correct. Consequently, I am of the view that, even if the plaintiff were able to appeal the decision of the Registrar to refuse the suspension of the PSO, that appeal would have no reasonable prospect of success. That conclusion also militates against the grant of the suspension order which is sought in this case.
38 It remains to say that, even if what the plaintiff ultimately wishes to do is to pursue an appeal against the Costs Order itself, I am not persuaded that he has reasonable prospects of success in that endeavour either. I say that not only for the reasons that I have already articulated, but because the plaintiff is now so far out of time in bringing an appeal against the Master's decision in respect of the Costs Order that it is difficult to see how he would secure an extension of time in which to do so, particularly having regard to the circumstances in which he previously pursued an appeal to the Master.
39 Taking all of these considerations into account, I am not persuaded that this would be an appropriate case for the grant of an order suspending the operation of the PSO, or of the Costs Order.
40 Accordingly, the application should be dismissed.
1Sims v Suda Ltd [2014] WASCA 113 [5] (citations omitted).
2Sims v Suda Ltd [2015] WASCA 65 [8].
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