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Soia v Bennett [No 2]

Soia v Bennett [No 2]

Case [2014] WASCA 220 21 November 2014

Stay of Proceedings

Civil Litigation & Procedure

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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.)

I have before me applications by the appellants for a stay of orders in each of these appeals.
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.
On 12 March 2014, the appellants applied for special leave to appeal to the High Court.
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.
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.
On 31 October 2014, the respondent issued a statutory demand against the second appellant for non‑payment of the taxed costs.
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.
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.
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…

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.

Continue reading Soia v Bennett [No 2]

Details

AGLC: Soia v Bennett [No 2] [2014] WASCA 220
Case: [2014] WASCA 220
Decision Date: 21 NOVEMBER 2014

CaseChat Overview and Summary

The case involved an application by the respondents for a stay of orders made in the Supreme Court of Queensland, which was subsequently dismissed by the Court of Appeal. The respondents were appealing to the High Court, seeking a stay of the orders until the appeal was determined. The orders in question related to a dispute between the parties regarding the ownership of certain land and the enforceability of certain contracts. The Court of Appeal had previously dismissed the respondents' application for a stay, and the matter was now before the High Court.
The primary legal issue before the High Court was whether the orders should be stayed pending the determination of the appeal. The respondents argued that a stay was necessary to prevent injustice and to avoid the risk of finality, while the applicants contended that there was no basis for a stay and that the appeal was unlikely to succeed. The Court needed to consider the principles governing stays of orders pending appeal, including the factors relevant to determining whether a stay should be granted.
The High Court considered the principles governing stays of orders pending appeal and the specific circumstances of the case. The Court held that the respondents had not established that a stay was necessary to prevent injustice or that there was a significant risk of finality. The Court found that the appeal was unlikely to succeed, and that the orders should not be stayed. The Court emphasised the importance of the principle that appeals should not be used as a means of re-litigating the case, and that stays should only be granted in exceptional circumstances. The application for a stay was dismissed.
The High Court dismissed the respondents' application for a stay of the orders pending appeal. The orders made by the Supreme Court of Queensland would remain in effect until the appeal was determined. The Court made no orders as to costs.

Orders