Tey v Optima Financial Group Pty Ltd [No 3]
[2012] WASCA 113
•31 MAY 2012
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [No 3] [2012] WASCA 113
CORAM: PULLIN JA
NEWNES JA
HEARD: 18 MAY 2012
DELIVERED : 18 MAY 2012
PUBLISHED : 31 MAY 2012
FILE NO/S: CACV 78 of 2010
CACV 7 of 2012
CACV 11 of 2012
CACV 12 of 2012
BETWEEN: KOK YONG TEY
Appellant
AND
OPTIMA FINANCIAL GROUP PTY LTD
Respondent
ON APPEAL FROM:
For File No : CACV 7 of 2012
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :COMMISSIONER GETHING
Citation :TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [No 3] [2012] WADC 3
File No :APP 44 of 2009
For File No : CACV 11 of 2012
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :COMMISSIONER GETHING
Citation :TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [2012] WADC 20
File No :APP 44 of 2009
For File No : CACV 12 of 2012
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :COMMISSIONER GETHING
Citation :TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [No 2] [2012] WADC 19
File No :APP 44 of 2009
For File No : CACV 78 of 2010
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :EM HEENAN J
Citation :TEY -v- OPTIMA FINANCIAL GROUP PTY LTD [No 2] [2012] WASCA 68
File No :CACV 78 of 2010
Catchwords:
Practice and procedure - Applications for suspension orders - Civil Judgments Enforcement Act 2004 (WA), s 15 - No grounds made out
Legislation:
Civil Judgments Enforcement Act 2004 (WA), s 15
Result:
Applications dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr B W Ashdown
Solicitors:
Appellant: In person
Respondent: De Vita & Dixon
Case(s) referred to in judgment(s):
Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2000] WASC 178; (2000) 22 WAR 372
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203
Smolarek v McMaster [2006] WASCA 216
Tey v Optima Financial Group Pty Ltd [2010] WADC 98
Tey v Optima Financial Group Pty Ltd [2010] WASCA 219
Tey v Optima Financial Group Pty Ltd [2011] HCASL 41
Tey v Optima Financial Group Pty Ltd [2012] WADC 20
Tey v Optima Financial Group Pty Ltd [No 2] [2011] WADC 129
Tey v Optima Financial Group Pty Ltd [No 2] [2012] WADC 19
Tey v Optima Financial Group Pty Ltd [No 2] [2012] WASCA 68
Tey v Optima Financial Group Pty Ltd [No 3] [2012] WADC 3
JUDGMENT OF THE COURT: On 18 May 2012, we dismissed applications by the appellant for suspension orders under s 15 of the Civil Judgments Enforcement Act 2004 (WA) in respect of four costs orders made against her in proceedings in this Court and the District Court. We said we would provide reasons for our decision. These are the reasons.
Background
The litigation
The proceedings out of which the applications arise had their genesis in the Magistrates Court. It is a rather tortured history. The respondent carried on the business of providing accounting services and business advice. The appellant carried on the business of a travel agent under the name Skyland Travel Services. The appellant engaged the respondent to audit the annual accounts of her business to meet certain statutory requirements.
The respondent carried out the work but the appellant did not pay the fee of $550. The respondent commenced proceedings against the appellant in the general jurisdiction of the Magistrates Court to recover its fee. The action went to trial before Magistrate Cockram on 18 June 2009. Neither party had legal representation. On 29 July 2009, the magistrate gave judgment for the respondent in the sum of $550 and allowable costs of $368.05. He allowed interest on the sum of $550 at 6% per annum from 11 October 2006 to judgment.
The appellant appealed to the District Court. The respondent applied under s 43(3) of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (the Act) for an order that the appeal be struck out on the grounds that the costs of the appeal were disproportionate to both the amount of the claim and the nature of the case and, alternatively, under s 43(4) of the Act on the basis that the grounds of appeal had no reasonable prospect of success.
The respondent's application came on for hearing on 2 June 2010. The appellant again appeared in person (as she has continued to do) but the respondent, being a corporation, was represented by solicitors, as it had to be: see Rules of the Supreme Court 1971 (WA), O 12 r 1(2); Eastern Metropolitan Regional Council v Four Seasons Construction Pty Ltd [2000] WASC 178; (2000) 22 WAR 372. On 25 June 2010, Davis DCJ dismissed the appeal: Tey v Optima Financial Group Pty Ltd [2010] WADC 98. Her Honour concluded that the costs of the appeal were disproportionate to both the amount of the claim and the nature of the case, and, in addition, that none of the grounds of appeal had any reasonable prospect of success.
The appellant then instituted an appeal to this court against the decision of Davis DCJ (CACV 78 of 2010). The respondent in turn brought an application to dismiss the appeal under s 43(3) of the Act on the grounds that the costs of the appeal were disproportionate to both the amount of the claim and the nature of the case. That application was successful and, on 24 September 2010, the appeal was dismissed: Tey v Optima Financial Group Pty Ltd [2010] WASCA 219.
The appellant applied for special leave to appeal to the High Court against that decision. The application was dismissed: Tey v Optima Financial Group Pty Ltd [2011] HCASL 41.
The taxing of the costs
While that marked the end of the substantive litigation, regrettably it was by no means the end of the litigation. As would be expected, a number of costs orders had been made against the appellant along the way. The taxing of the costs was marked by dogged resistance from the appellant and has spawned a fresh batch of appeals.
On 11 July 2011, the respondent filed a bill of costs in the sum of $10,422.50 in respect of the appellant's appeal to the District Court. On 4 August 2011, the appellant lodged an application to adjourn the taxation. That application came before Deputy Registrar Hewitt on 5 August 2011, who dismissed it with no order as to costs. The deputy registrar then proceeded with the taxation. He allowed the bill at $8,023.19, including the taxing fee.
The deputy registrar deferred signing the certificate of taxation until 19 August 2011 to allow the appellant to file objections. The appellant filed objections on 18 August 2011. On 24 August 2011, the deputy registrar dismissed the objections: Tey v Optima Financial Group Pty Ltd [No 2] [2011] WADC 129.
On 13 September 2011, the appellant applied to a judge of the District Court to review the taxation under O 66 r 55(1) of the Rules of the Supreme Court. On 19 January 2012, Commissioner Gething dismissed the application for review: Tey v Optima Financial Group Pty Ltd [No 3] [2012] WADC 3. He ordered the appellant to pay the respondent's costs of the review and adjourned the application to 3 February 2012 for the purpose of fixing the costs.
By an appeal notice filed on 9 February 2012 (CACV 7 of 2012), the appellant appealed to this court against the Commissioner's decision.
On 3 February 2012, two matters came before Commissioner Gething. One was the costs of the appellant's application to review the taxation which his Honour had dismissed on 19 January 2012. His Honour fixed the costs of the review in the sum of $5,332.25 and ordered the appellant to pay those costs by 24 February 2012: Tey v Optima Financial Group Pty Ltd [No 2] [2012] WADC 19.
By an appeal notice filed on 23 February 2012 (CACV 12 of 2012), the appellant appealed to this court against that decision.
The other matter before the Commissioner on 3 February 2012 was a chamber summons filed on 21 September 2011 by the appellant in which she sought to appeal against the costs order made by Davis DCJ on the appeal to the District Court. The appellant appeared to contend that there was an issue as to whether the respondent was entitled to both the costs of the appeal and the costs of its application to strike out the appeal. In any event, when the application came before the Commissioner the appellant sought to discontinue it. The commissioner ordered that it be dismissed and ordered the appellant to pay the respondent's costs of the application, which he fixed on an indemnity basis in the sum of $12,500: Tey v Optima Financial Group Pty Ltd [2012] WADC 20. Those costs were also ordered to be paid by 24 February 2012.
By an appeal notice also filed on 23 February 2012 (CACV 11 of 2012), the appellant appealed to this court against that decision.
In the meantime, the respondent had lodged a bill of costs for taxation in respect of the appeal to this court from the decision of Davis DCJ (CACV 78 of 2010). An appointment for the taxation of the bill was set down for 8 August 2011. An application by letter from the appellant to have the taxation adjourned was refused and, on 8 August 2011, the bill was taxed and allowed in the sum of $7,012.02. The appellant did not attend the taxation.
On 9 August 2011, the appellant wrote to the court complaining about the taxation going ahead and asking for it to be set aside. The letter was treated as an application for a review of the taxation under O 66 r 54(5) of the Rules of the Supreme Court. Following some further correspondence from the appellant which it is unnecessary to relate, by letter dated 7 December 2011 the appellant was informed that the taxing officer had reviewed the taxation but found no error of principle and accordingly the allocatur would not be set aside.
Undaunted, the appellant applied by a chamber summons, filed on 12 December 2011, for an extension of time to apply to set aside the allocator and for an order setting it aside. That application came before EM Heenan J on 23 February 2012. His Honour dismissed it: Tey v Optima Financial Group Pty Ltd [No 2] [2012] WASCA 68. The appellant was ordered to pay the respondent's costs of the application fixed at $900.
The appellant has not appealed against that decision.
As will be apparent, to date from an acorn of $550 has grown a great oak of costs orders of some $34,000. Those costs have not been paid and the respondent's attempts to recover them have again met strenuous resistance from the appellant.
The respondent's attempts to levy execution on the costs orders
On 7 March 2012, two property (seizure and sale) orders (PSSO) were issued on behalf of the respondent pursuant to the Civil Judgments Enforcement Act. One, in respect of the taxed costs of the appeal to the District Court, was for the sum of $8,023.19 plus costs and charges of $1,243, a total of $9,266.19. The other, in respect of the taxed costs of the applications before Commissioner Gething on 3 February 2012, was in the sum of $17,832.25 ($12,500 plus $5,332.25) plus costs and charges of $1,243, a total of $19,075.25.
Subsequently a third PSSO was issued in respect of the taxed costs of the appeal to this court in CACV 78 of 2010, in the sum of $7,012.02 plus costs and charges of $1,332.91, a total of $8,344.93. The total amount of the three PSSOs is therefore $36,686.37.
The appellant's application to the District Court for suspension orders
On 24 April 2012, the appellant applied to the District Court for a stay of the two PSSOs issued on 7 March 2012 pending the determination of both the appeals against the orders of Commissioner Gething and an application which the appellant filed in the general division of this court on 24 April 2012, pursuant to s 36 of the Act, seeking to quash the decision of Magistrate Cockram of 29 July 2009.
On 27 April 2012, Commissioner Gething dismissed the application for a stay. He treated it as an application for a suspension order under s 15 of the Civil Judgments Enforcement Act. His Honour found there were no special circumstances which would justify a suspension order. He considered that whatever the outcome of the proceedings under s 36 of the Act might be, it was irrelevant to the costs orders that had already been made. He also found there was no evidence that the appellant could not raise the money to pay the costs orders or that the appellant would be unable to recover it from the respondent if the appellant were ultimately successful on the appeals. (We note in passing that by an appeal notice filed on 18 May 2012 (CACV 39 of 2012) the appellant has appealed to this court against the Commissioner's dismissal of the stay application.)
The appellant's application to this court for suspension orders
The appellant has now brought an application in this court seeking orders suspending the enforcement of the costs orders made in the District Court. The application is presumably brought pursuant to s 15 of the Civil Judgments Enforcement Act. It is supported by an affidavit of the appellant. In that affidavit the appellant briefly describes how she came to learn of the existence of the PSSOs and mentions her application for a suspension order in the District Court. She says that execution pursuant to the PSSOs would lead to the sale of her home and that unless a suspension order is made the appeals currently before this court will be defeated, as will the proceedings she has commenced under s 36 of the Act. The appellant asserts that the respondent was not entitled to the judgments he has obtained.
There is no explanation as to why the application has been brought in this court, following the dismissal of what appears to be in all essential respects an identical application to the District Court. The current application would appear to be an abuse of process. However, it is unnecessary to dwell on that. The application can be disposed of on the merits quite shortly.
The general principles applicable to an application under s 15 of the Civil Judgments Enforcement Act are not materially different from those which applied to an application for a stay of execution before the introduction of the Act: see Ladang Jalong (Australia) Pty Ltd v Callander [2005] WASCA 203 [3]; Smolarek v McMaster [2006] WASCA 216 [33]. Those principles were summarised by Murray and Parker JJ in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308. It is unnecessary to set them out in full. Suffice it to say that the ultimate question on such an application is whether the applicant has satisfied the court that there are special circumstances which justify a departure from the ordinary rule that a successful party is entitled to enforce the judgment pending the determination of any appeal. For that purpose, ordinarily the applicant will need to show, among other things, that the grant of a suspension order is reasonably necessary to preserve the subject matter or the integrity of the litigation, or that refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal.
The appellant has not put before us any evidence which is capable of making out a case for a suspension order. There is no evidence that if the costs are paid to the respondent there is reason to believe the appellant would be unable to recover them if her appeals were to succeed. There is also no evidence that the appellant is unable to pay the outstanding costs without selling her home. The appellant's sole concern, as it emerges from her affidavit, is to avoid having to pay the costs unless and until all of the outstanding appeals, and the recently instituted proceedings under s 36 of the Act, have been finally concluded adversely to her. That provides no foundation for a suspension order. We would add that in view of the appellant's propensity to pursue every issue to its exhaustion it would be unduly optimistic to assume that those matters will be completed in the near future.
The application is without merit and should be dismissed.
The appellant has also brought an application for an order suspending the enforcement of the order for costs of $7,012.02 made in respect of the appeal to this court in CACV 78 of 2010. The application was filed in the proceedings before EM Heenan J but was made returnable before this court. In the supporting affidavit, the appellant says that the respondent was not entitled to the costs of the appeal. The appellant again refers to the proceedings she has recently commenced under s 36 of the Act to quash the decision of Magistrate Cockram.
Again, no basis has been shown for a suspension order. The application is without merit and should be dismissed.
Conclusion
It was for those reasons we dismissed the applications, with costs.
At the conclusion of the hearing the appellant was informed that the papers would be referred to the Attorney General with a request that the Attorney consider making an urgent application for orders against the appellant under s 4 of the Vexatious Proceedings Restriction Act 2002 (WA).
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