Williamson v The Bendigo Adelaide Bank Ltd [No 2]

[2012] WASCA 269

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   WILLIAMSON -v- THE BENDIGO ADELAIDE BANK LTD [No 2] [2012] WASCA 269

CORAM:   PULLIN JA

NEWNES JA

HEARD:   26 NOVEMBER 2012

DELIVERED          :   26 NOVEMBER 2012

FILE NO/S:   CACV 55 of 2012

BETWEEN:   HARLEY ROBERT WILLIAMSON

TANGIWAI JACQUI MAXWELL
Appellants

AND

THE BENDIGO ADELAIDE BANK LTD
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :MASTER SANDERSON

File No  :CIV 2361 of 2011

Catchwords:

Practice and procedure - Stay of execution - Stay of Court of Appeal judgment pending application for special leave to appeal to High Court - Jurisdiction to grant - Circumstances where discretion to grant stay will be exercised

Legislation:

Civil Judgments Enforcement Act 2004 (WA)
Supreme Court (Court of Appeal) Rules 2005 (WA)

Result:

Application for a suspension order or stay is dismissed

Category:    B

Representation:

Counsel:

Appellants:     In person

Respondent:     No appearance

Solicitors:

Appellants:     In person

Respondent:     Herbert Smith Freehills

Case(s) referred to in judgment(s):

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308

Hall v Hall [2007] WASCA 94

Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79

Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; (1986) 161 CLR 681

Williamson v The Bendigo Adelaide Bank Ltd [2012] WASCA 208

1. REASONS OF THE COURT:    The appellants apply for orders in the following terms:

   Judgment entered against the appellants by Master Sanderson in chambers on the 16th of April 2012.  CIV 2361 of 2011.  Be set aside until a final judgment is entered by the High Court of Australia, having filed for special leave to appeal, on P36 of 2012 [sic].

   The property at 8 Mastalerz Retreat Settlers Ridge.  Toodyay Western Australia 6566.  The Bailiff be restrained from seizing the aforementioned property on the 27/11/2012 at 1000 Hours [sic].

2. The master's judgment obliged the appellants to deliver up possession of 8 Mastalerz Retreat, Toodyay, and to pay the respondent $285,583.88.

3. The appellants appealed to this court against the judgment.  The appeal was commenced out of time.  The appellant's application for an extension of time was dismissed because none of the proposed grounds of appeal had any reasonable prospect of succeeding:  see Williamson v The Bendigo Adelaide Bank Ltd [2012] WASCA 208.

4. The first‑named appellant deposed that an application for special leave to appeal against that judgment has been accepted for filing by the High Court. The appellant's application is for a suspension order under s 15 of the Civil Judgments Enforcement Act 2004 (WA) or a stay under r 43 of the Supreme Court (Court of Appeal) Rules 2005 (WA) concerning the master's judgment.

5. Special circumstances have to be shown before a suspension order may be made: see s 15 of the Civil Judgments Enforcement Act.  This is also the case in an application for a stay under r 43:  see Hall v Hall [2007] WASCA 94. The High Court also has jurisdiction to grant a stay but it is to this court that the application should first be made: see Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; (1986) 161 CLR 681, 684. In that case Brennan J said that exceptional circumstances had to be shown before a stay would be ordered.

6. The principles which usually govern applications of this kind are well known:  see Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 and Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79. The first question is whether the application for special leave will be rendered nugatory if a suspension order or stay is not granted. The appellant deposes that the bailiff will be taking possession of the property tomorrow. Although a sale by auction is still some time away the court will proceed by assuming that the sale will take place before the special leave application is heard and therefore the application for special leave will be rendered nugatory unless a suspension order or stay is granted.

7. However, that is not the end of the matter.  It is then necessary to show that the application for special leave has reasonable prospects of succeeding.  The appellants have not disclosed proposed grounds of appeal to the High Court but this court was informed that the same grounds of appeal which were offered in the appeal to this court will be repeated in the appeal to the High Court.  Those grounds have no reasonable prospects of success for the reasons given in the application that was made to this court for an extension of time.  As a result the application should be dismissed.