Sovereign Grange Pty Ltd v A v Truck Services Pty Ltd
[2016] WASCA 218
•8 DECEMBER 2016
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: SOVEREIGN GRANGE PTY LTD -v- A V TRUCK SERVICES PTY LTD [2016] WASCA 218
CORAM: NEWNES JA
HEARD: 1 DECEMBER 2016
DELIVERED : 1 DECEMBER 2016
PUBLISHED : 8 DECEMBER 2016
FILE NO/S: CACV 49 of 2016
BETWEEN: SOVEREIGN GRANGE PTY LTD
Appellant
AND
A V TRUCK SERVICES PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :WAGER DCJ
Citation :SOVEREIGN GRANGE PTY LTD -v- AV TRUCK SERVICES PTY LTD [No 2] [2016] WADC 73
File No :CIV 4008 of 2010
Catchwords:
Practice and procedure - Application for suspension of enforcement of judgment pending outcome of appeal - Civil Judgments Enforcement Act 2004 (WA), s 15 - Relevant principles - Whether usual principles apply where judgment obtained without hearing on substantive merits
Legislation:
Civil Judgments Enforcement Act 2004 (WA), s 15
Result:
Application dismissed
Category: B
Representation:
Counsel:
Appellant: Mr J R Criddle
Respondent: Mr H M O'Sullivan
Solicitors:
Appellant: Walker Hedges
Respondent: SRB Legal
Case(s) referred to in judgment(s):
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203
NEWNES JA: This is an application for the suspension of the enforcement of costs orders in the proceedings below pending the determination of the appeal. On 1 December 2016, I dismissed the application. I said I would publish reasons for my decision. These are the reasons.
Background
The relevant background can be shortly stated. On 22 December 2010, the appellant commenced proceedings in the District Court seeking damages arising from damage to a prime mover truck that had been purchased from the respondent in 2008 and had caught fire on 3 August 2008. The appellant relied on the merchantable quality provisions of the (then) Trade Practices Act 1974 (Cth).
The action appears to have moved at an increasingly leisurely pace until, on 26 August 2012, it was placed on the inactive cases list, pursuant to subdiv 3(6) of pt 4 of the District Court Rules2005 (WA).
On 19 February 2013, the appellant entered the matter for trial, thereby removing the case from the inactive cases list. That occurred about two weeks prior to the date when the case would have been taken to have been dismissed pursuant to r 44G of the District Court Rules. Some procedural orders were subsequently made but in time an air of languor appears to have settled in again and, on 27 November 2014, the case was once more placed on the inactive cases list. The parties were notified of that on 1 December 2014.
No steps were taken in the action in the period to 27 May 2015 and, pursuant to r 44G of the District Court Rules, the action was taken to have been dismissed.
On 15 July 2015, the appellant filed an application under r 44G of the District Court Rules to have the dismissal of the action set aside. That application was dismissed by Principal Registrar Melville on 5 November 2015.
The appellant then appealed from the principal registrar's decision to a judge of the District Court. Under the District Court Rules such an appeal is a hearing de novo. The appeal was heard on 6 April 2016 by Wager DCJ and dismissed by her Honour on 20 May 2016.
The appellant then sought to appeal to this court from the decision of the primary judge. An appeal notice was filed on 8 June 2016 and an amended appeal notice on 24 August 2016.
In the meantime, the parties came to an agreement on the costs of the proceedings in the District Court. On 22 August 2016, agreement was reached that the appellant would pay the respondent's costs of those proceedings in the sum of $19,550. The taxation of costs listed for 23 August 2016 was vacated. The respondent then sought payment of the costs. Payment was not forthcoming.
On 16 September 2016, the appellant's solicitors wrote to the respondent's solicitors, noting that an appeal had been lodged and offering to pay an amount of $10,000 toward the agreed costs if the respondent would agree to a stay in respect of the balance pending the outcome of the appeal. The respondent declined to do so and subsequently obtained a certificate of the taxing officer in the District Court in the sum of $19,500. The taxing officer's certificate is deemed to be a judgment of the court and is enforceable as such: Rules of the Supreme Court 1971 (WA) O 66 r 57.
The respondent then indicated that it intended to commence enforcement proceedings to recover the costs. That led to the application by the appellant that is currently before this court for a suspension of the enforcement or a stay pending the determination of the appeal.
The affidavit in support of the application, sworn by the solicitor for the appellant, Mr Hedges, simply recites, in substance, the sequence of events from the agreement on costs to the threat by the respondent to commence enforcement proceedings.
An affidavit in opposition to the application has been sworn by the respondent's solicitor, Mr Winburn‑Clarke. That affidavit is to similar effect but adds that the respondent is insured in respect of the appellant's claim by QBE Insurance (Australia) Limited, which is an interested non-party. Mr Winburn‑Clarke observes that QBE has the financial capacity to meet any liability for costs (or otherwise) that the respondent may have to the appellant.
Disposition of the application
The principles to be applied on such an application are well-established. An order suspending the enforcement of a judgment may be made under s 15 of the Civil Judgments Enforcement Act 2004 (WA) if there are 'special circumstances' that justify doing so or, alternatively, the court has power under its rules to grant an interim order in the form of a stay of execution pending the hearing of the appeal. I take the appellant's application to be made on those alternative bases.
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 [2003] WASCA 307; (2003) 28 WAR 308: see Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203 [3]. Those applicable to an application for a stay under the rules are not materially different. For present purposes, they can be sufficiently stated as follows:
•Ordinarily a successful litigant is entitled to enforce a judgment pending the determination of any appeal. It is for the applicant to persuade the court that there are special circumstances that justify the suspension of enforcement of the judgment.
•Generally that will require the applicant to establish that the suspension of enforcement is necessary to prevent the right of appeal being rendered nugatory or to avoid practical difficulties in respect of the relief which may be granted on appeal.
•Even if that is made out, the suspension of enforcement will generally be refused unless the court is satisfied that the appeal has reasonable prospects of success.
•And it may still be refused where it appears that the balance of convenience does not lie in favour of the applicant; where, for example, the suspension of enforcement will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted.
There is nothing to suggest that the appeal might be rendered nugatory if enforcement of the costs order was not suspended or that practical difficulties might arise in respect of the relief that may be granted on appeal. Perhaps unsurprisingly, it was not contended that if the costs were paid by the appellant it might have difficulty recovering them in the event the appeal was successful. Nor, I should add, was it suggested that payment of the costs would cause the appellant any financial difficulty.
The appellant instead argued that the usual principles did not apply here as this was not a case where the respondent had obtained a judgment on the substantive merits; rather, the costs followed from a rejection of an application by the appellant to set aside a statutory dismissal of the action. It was submitted that in determining an application of this nature, the court was required to balance the interests of the parties. In doing so, the court should take into account that the appeal was likely to be listed early in 2017 and, in circumstances where the costs will have to be repaid if the appeal is successful, it should not require the payment of the costs in the meantime. It was submitted that given the likely short period of time involved, the respondent would not be prejudiced if payment of the costs was not made pending the outcome of the appeal.
I do not accept the appellant's submission that the usual principles that apply on an application for the suspension of the enforcement of a judgment do not apply in the present case. No authority was cited in support of that submission and I am not aware of any authority that might support it. The point of distinction sought to be raised is without merit. There is no reason why the usual principles should not apply. The respondent has an extant judgment for the costs that it is entitled to enforce. The onus was on the appellant to establish proper grounds upon which the respondent's right to do so should be suspended or stayed. It has failed to do so. There is nothing in the circumstances of the present case that would justify the order sought.
I should add that the submission that the appeal was likely to be listed for hearing early in 2017 reflects an optimism I do not share. As matters stand, it is unlikely to be heard before about the middle of 2017 and even that cannot be taken as certain.
Conclusion
It was for those reasons that the application was dismissed.
0
1
1