Tey v Optima Financial Group Pty Ltd [No 3] - [2012] WADC 65

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…

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.

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Details

Case: [2012] WADC 65
Decision Date: 27 APRIL 2012

CaseChat Overview and Summary

In the case of Tey v Optima Financial Group Pty Ltd, the applicant sought an order suspending judgment pending the outcome of an appeal. The applicant, Tey, was the defendant in the underlying proceeding, where a judgment was entered against him. The respondent, Optima Financial Group Pty Ltd, was the plaintiff in that proceeding. The dispute centred around the enforcement of the judgment, with Tey seeking to have it suspended until the appeal was determined. The matter was heard in the Federal Court of Australia.

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