Soia v Bennett [No 2]

[2014] WASCA 220

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   SOIA -v- BENNETT [No 2] [2014] WASCA 220

CORAM:   MURPHY JA

HEARD:   21 NOVEMBER 2014

DELIVERED          :   21 NOVEMBER 2014

FILE NO/S:   CACV 108 of 2012

CACV 8 of 2013

BETWEEN:   KIM PETER SOIA

First Appellant

PERSONALIZED TUITION SERVICES PTY LTD
Second Appellant

AND

MARTIN LAWRENCE BENNETT
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :COMMISSIONER SLEIGHT

Citation  :SOIA -v- BENNETT [No 5] [2012] WASC 289

File No  :CIV 1130 of 2003

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :COMMISSIONER SLEIGHT

Citation  :SOIA -v- BENNETT [No 5] [2012] WASC 289 (S)

File No  :CIV 1130 of 2003

Catchwords:

Application for stay of orders pending appeal to High Court

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

First Appellant               :     Mr D J Garnsworthy

Second Appellant          :     Mr D J Garnsworthy

Respondent:     Mr N C Ebbs

Solicitors:

First Appellant               :     Galic & Co

Second Appellant          :     Galic & Co

Respondent:     Bennett + Co

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

Williamson v The Bendigo Adelaide Bank Ltd [No2] [2012] WASCA 269

MURPHY JA: 

(This judgment was delivered extemporaneously 21 November 2014 and has been edited.)

1. I have before me applications by the appellants for a stay of orders in each of these appeals.

2. On 5 February 2014, this court dismissed the appeals in these two matters and ordered that the appellants jointly and severally pay the respondent's costs of the appeals.

3. On 12 March 2014, the appellants applied for special leave to appeal to the High Court.

4. On 7 May 2014, the appellants' solicitors wrote to the respondent's solicitors requesting that the respondent consent to a stay, or an undertaking not to enforce the costs orders, until determination of the special leave applications.  The respondent's solicitors advised, in effect, that the respondent would not consent or give the undertaking requested.

5. On 3 June 2014, the respondent had his costs taxed.  Costs were taxed in the sum of $57,157.97 in CACV 108 of 2012, and $44,931.59 in CACV 8 of 2013.

6. On 31 October 2014, the respondent issued a statutory demand against the second appellant for non‑payment of the taxed costs.

7. On 20 November 2014, the day before the expiration of the 21 day period referred to in the statutory demand, the appellants filed these urgent applications for a stay.  The applications were heard on an urgent basis this morning.

8. The appellants' arguments in support of the stay applications are essentially to the effect that the subject matter of the applications to the High Court, particularly in relation to the question of costs, raise important matters of principle, and are of wider interest to the legal profession.

9. A number of the relevant principles, in the context of stay applications, were discussed by Pullin and Newnes JJA in Williamson v The Bendigo Adelaide Bank Ltd [No2] [2012] WASCA 269:

   Special circumstances have to be shown before a suspension order may be made: see s 15 of the Civil Judgments Enforcement Act.  This is also the case in an application for a stay under r 43:  see Hall v Hall [2007] WASCA 94. The High Court also has jurisdiction to grant a stay but it is to this court that the application should first be made: see Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; (1986) 161 CLR 681, 684. In that case Brennan J said that exceptional circumstances had to be shown before a stay would be ordered.

   The principles which usually govern applications of this kind are well known:  see Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 and Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79. The first question is whether the application for special leave will be rendered nugatory if a suspension order or stay is not granted. …

   … It is then necessary to show that the application for special leave has reasonable prospects of succeeding [5] ‑ [7].

10. I will assume, without deciding, that the applications for special leave have reasonable prospects of success.  I will also assume that the matters the subject of the leave applications raise important points of principle and are of wider interest to the legal profession, particularly in relation to costs.  I will also assume that they are relevant considerations.  Even so, it does not appear to me that those matters carry any real weight in the present circumstances.  This is essentially litigation in which the parties were in contest as to their private rights and interests.  The appellants have not established, and as far as I understand it, do not contend, that the applications for special leave will be rendered nugatory if a suspension order or stay is not granted.  In this regard, there is no evidence that the appellants cannot afford to pay the taxed costs.  Nor is there evidence that the respondent could not repay the money in the event of a successful appeal to the High Court.  Nor has there been any offer to pay the money into court in the interim.

11. Further, the delay in bringing a stay application has been egregious.  The prospect was first raised in May 2014, but nothing was done about it until yesterday.  Even absent any specifically identifiable prejudice, on the evidence before me, a person in the position of the respondent would ordinarily be entitled to assume up to yesterday, for the purpose of arranging his affairs, that the appellants were no longer contending for a suspension of the court's orders.  There is a suggestion that the delay has been occasioned by the appellants being unable to instruct lawyers.  However, the evidence is sparse and incomplete and does not seem to me to carry significant probative force.

12. I am not persuaded that it is in the interests of justice to grant a stay.  The appellants' applications in both matters are dismissed.