JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS
LOCATION: PERTH
CITATION: TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [No 3] [2012] WADC 65
CORAM: COMMISSIONER GETHING
HEARD: 27 APRIL 2012
DELIVERED : 27 APRIL 2012
FILE NO/S: APP 44 of 2009
BETWEEN: KOK YONG TEY
Appellant (Defendant)
AND
OPTIMA FINANCIAL GROUP PTY LTD
Respondent (Plaintiff)
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram :MAGISTRATE COCKRAM
File No :PE 8354 of 2008
Catchwords:
Practice and procedure - Application for suspension of judgment pending outcome of appeal - Turns on own facts
Legislation:
Civil Judgments Enforcement Act 2004 (WA) s 15
Result:
Application dismissed
Representation:
Counsel:
Appellant (Defendant) : In person
Respondent (Plaintiff) : Mr B W Ashdown
Solicitors:
Appellant (Defendant) : Not applicable
Respondent (Plaintiff) : De Vita & Dixon Lawyers
Case(s) referred to in judgment(s):
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [2011] WASCA 43
Samuels v Western Australia (2005) 30 WAR 473; [2005] WASCA 193
Spiers Earthworks Pty Ltd v Landtec Projects Corp Pty Ltd [2010] WASCA 226
Tey v Optima Financial Group Pty Ltd [2012] WADC 20
Tey v Optima Financial Group Pty Ltd [No 2] [2012] WADC 19
Tey v Optima Financial Group Pty Ltd [No 3] [2012] WADC 3
COMMISSIONER GETHING: By application dated 24 April 2012 the appellant sought a stay of enforcement of two property (seizure and sale) orders (PSSO) issued pursuant to the Civil Judgments Enforcements Act (2004) (WA) (CJEA). I have treated this as an application for a suspension order pursuant to CJEA s 15. The application arises out of an appeal considered by this court from a decision of Magistrate Cockram concerning a judgment of $550, together with interests and costs fixed at $368.05. The substantive appeal was dismissed in June 2010. There were subsequently unsuccessful appeals to the Court of Appeal and the High Court. I have recently set out the procedural history in Tey v Optima Financial Group Pty Ltd [No 3] [2012] WADC 3.
The application follows the appellant being served with notice by the sheriff, the effect of which is that the sheriff has been authorised by the PSSO to sell a property at 9 Barclay Road, Kardinya to satisfy the judgment debt.
There were two PSSOs issued, each on 7 March 2012. The first was for $8,023.19. This was for the costs of the appeal in the District Court. The bill of costs for the appeal was the subject of an unsuccessful review application. That decision (Tey [No 3]) is currently the subject of an appeal to the Court of Appeal.
The second PSSO issued on 7 March 2012 was for a judgment sum of $17,832.25. This was for the costs of an unsuccessful review of the taxation and for a further unsuccessful application for which I ordered indemnity costs. These decisions are reported…
Keep reading for free
Create a free CaseChat account to read Tey v Optima Financial Group Pty Ltd [No 3] and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2012] WADC 65
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the court was whether the applicant had made out a case for suspending the judgment pending the outcome of an appeal. The applicant argued that there was a serious question to be tried on the appeal, and that the enforcement of the judgment would cause him substantial injustice. The respondent contended that the applicant had not demonstrated the requisite balance of convenience in favour of suspending the judgment, nor had he shown that he had a serious question to be tried on the appeal.
The court held that the matter turned on its own facts. It found that the applicant had not demonstrated a serious question to be tried on the appeal, nor had he shown that there was a balance of convenience in favour of suspending the judgment. The court was also not persuaded that the applicant would suffer substantial injustice if the judgment was enforced. As a result, the application was dismissed.
The Federal Court ordered that the application for suspension of judgment be dismissed, with each party to bear their own costs of the application.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.