Tey v Optima Financial Group Pty Ltd [No 3]
[2012] WADC 65
•27 APRIL 2012
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 as Tey v Optima Financial Group Pty Ltd [2012] WADC 20, and Tey v Optima Financial Group Pty Ltd [No 2] [2012] WADC 19. These decisions are also the subject of appeal to the Court of Appeal.
The net total from the two PSSOs exceeds $25,000. From the materials before me, I am also aware that there is an outstanding judgment for costs arising out of the initial appeal to the Court of Appeal. That costs order appears to be in the amount of approximately $8,000.
Civil Judgments Enforcements Act s 15(1) empowers the appellant to make an application to this court suspending the enforcement of all or part of a judgment. The term 'judgment' in this context includes the three costs orders. By CJEA s 15(3), the 'court may only make such an order if there are special circumstances that justify doing so'.
The principles applicable to an application under CJEA s 15 are not materially different from those which applied to an application for a stay of execution before the introduction of that Act: MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) v Wyatt [2011] WASCA 43; Spiers Earthworks Pty Ltd v Landtec Projects Corp Pty Ltd [2010] WASCA 226. The general principles that were applicable to the exercise of the court's jurisdiction to stay a grant of execution were summarised by Murray and Parker JJ in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308, [9] as follows:
The successful litigant at first instance will ordinarily be entitled to enforce the judgment pending the determination of any appeal.
It is for the applicant for a stay to move the court to a favourable exercise of its discretion.
It will not do so unless special circumstances are shown justifying the departure from the ordinary rule.
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 where refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. It is often put shortly that it will first and foremost be necessary to establish that without the grant of a stay, the right of appeal, whether upon the grant of leave or special leave or not, will be rendered nugatory.
If that can be demonstrated, the stay will generally still be refused unless it can be established that the appeal process, whether upon the grant of leave or special leave or not, has ultimately reasonable prospects of success so as to result in the grant of relief to the appellant.
If that hurdle can be overcome, 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.
In Spiers, Newnes J added [17] that while 'those principles provide guidance in the exercise of the discretion, they are not inflexible or exhaustive, and at all times the ultimate question must be whether there are special circumstances which justify a court ordering a stay'.
In Smith, Pullin J A [47] stated that 'the first issue which usually has to be confronted is whether or not a stay is necessary to preserve the subject matter or integrity of the litigation or where the refusal of a stay could create potential difficulties in respect of the relief which may be granted on appeal; that is that without the grant of a stay, the right of appeal would be rendered nugatory'.
In the present case, there is no evidence before me to suggest that if the appeals to Court of Appeal are successful either in whole or in part, the respondent will not be able to repay any amounts so received under the judgments the subject of the appeal.
In relation to the second issue, the merits of appeal, in the decision in Smith, Pullin J stated [6] – [7]:
The second point that then has to be considered is whether the appeal has reasonable prospects of success. If reasonable prospects of success cannot be shown, then a stay will not be granted even if the appeal might be rendered nugatory if no stay is granted. Reasonable prospects of success is the test which has to be applied, but this does not involve considering the whole of the case and conducting a mini-appeal in order to resolve the issue.
In Samuels v Western Australia (2005) 30 WAR 473; [2005] WASCA 193, the court considered the meaning of that phrase in a statutory context and said that:
'The ordinary meaning of the words, "reasonable prospects of success," must be taken to mean that a ground is required to have a rational or logical prospect of succeeding. That is that it would not be irrational, fanciful or absurd to envisage it succeeding in that forum, in effect that it has a real prospect of success.'
The appellant relies on two sets of proceedings in relation to this aspect of the discretion. The first is the three appeals to the Court of Appeal. The status of these appeals is that on 23 April 2012 Newnes JA made springing orders for the appellant to file her case by 11 June 2012 in relation to two of the appeals, and 28 May 2012 in relation to the third.
Each decision the subject of the appeal involves the routine application to the facts of well established principles. The decision of her Honour Judge Davis granting the respondent costs is not the subject of any of the appeals. Rather, the appeals go to the quantum of these costs. I do not, therefore, consider that the appellant has a reasonable prospect of successfully arguing that the respondent has no entitlement to any of the costs in the appeal. She may well be successful in arguing that the discretion which I exercised in each of the cases ought to be exercised in a slightly different manner. However, that would still leave her with some costs to pay.
The appellant in her affidavit filed 24 April 2012 stated that she had filed an originating motion pursuant to Magistrates Court Act 2001 (WA) (MCA) s 36 in the Supreme Court to challenge and quash the initial decision of Magistrate Cockram on 2 July 2009. The decision of Magistrate Cockram, as I have noted, was for judgment of $550 together with interest and costs. It is this decision that was the subject of the initial appeal to the District Court.
The appellant advised from the bar table that the application pursuant to MCA s 36 is listed for an initial ex parte hearing in September of this year. The appellant described two grounds on which the application was brought. The first ground is that the present case ought to have been dealt with as a minor case pursuant to Magistrates Court (Civil Proceedings) Act 2004 (MCCPA) Pt IV. However, as the counsel for the respondent pointed out, there are two preconditions to a case being a minor case. The first is that the value of the claim or relief claimed is not more than the minor cases jurisdictional limit. This is the case here. The second is that the claimant has elected to have the claim dealt with under the minor cases procedure. In the present case the claimant (the respondent) did not make that election. Therefore, as the claimant did not make that election, this case could never have been a minor case.
The second ground is that the magistrate erred on the basis that judgment was given to the respondent when the party entitled to sue was one of its directors, a Mr O'Brien. This issue goes to the merits of the decision before his Honour Magistrate Cockram.
In relation to MCA s 36, one of the outcomes is that the court may, if it considers that an appeal lies under the MCCPA in respect of the decision the subject of the s 36 application, direct the application to be treated as if it were an appeal and remit the matter to the District Court to be dealt with. Accordingly it seems to me that there is a substantial overlap between the process in MCA s 36 and an appeal. As I have already indicated, the appeal from the decision of Magistrate Cockram has already been considered by this court.
The other issue that arises in relation to the originating motion filed in the Supreme Court is that on a plain reading of MCA s 36, even if the Supreme Court determines the application, there is no power to set aside the costs orders that have been made in this appeal. Therefore, even if the appellant is entirely successful, the costs orders will still stand.
On this basis I am not satisfied on the evidence before me that the proceedings pursuant to MCA s 36 ought to be given any weight in the exercise of the discretion under CJEA s 15.
The final issue is the balance of convenience. The PSSOs direct the sheriff to sell a property at 9 Barclay Road, Kardinya. In her affidavit filed in support of the application, the appellant has described this property as her family home. She has also stated that she operates a travel agency business from this address.
Counsel for the respondent pointed out that as at the present date there is no appeal from the costs order made in the Court of Appeal. Thus, even if the appeals from the costs orders in the Supreme Court are successful, there is still an operative costs order in relation to the Court of Appeal decision.
The appellant stated from the bar table that she intends to apply for a suspension order in relation to the PSSO issued out of the Supreme Court.
From the bar table the appellant also told me that in addition to the land at 9 Barclay Road in Kardinya she has a block of land, though she advised that that was the subject of litigation.
The total amount of the PSSOs in the District Court is just over $25,000. To that we add $8,000 or so from the Court of Appeal. I would have thought that an amount of $33,000 or so is a fraction of the price of a home in Kardinya. There is no information before me to suggest that the appellant could not obtain a loan to pay the judgment debts and thereby avoid the sale of her home.
The appellant also made the point that the respondent gets interest at the rate of 6 per cent. She submitted that if, at the end of the day, all her avenues of appeal are exhausted and she has to pay the judgment debts, then the respondent in a sense would not be out of pocket because it is entitled to interest.
On the other side of the balance of convenience, the respondent has been put to inordinate expense defending a claim for $550. From the appellant's submissions today it is apparent that litigation is set to continue with the proceedings under MCA s 36 in the Supreme Court.
The ordinary rule is that a successful litigant at first instance will be entitled to enforce the judgment pending the determination of any appeal. It is for the applicant for a suspension order to move the court to a favourable exercise of its discretion. The appellant in the present case has not satisfied me that there are special circumstances justifying the making of a suspension order so I decline to do so.
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