Witherspoon v Hutson

[2014] QCA 282

[2014] QCA 282

COURT OF APPEAL

MUIR JA

Appeal No 10501 of 2014
SC No 9450 of 2014

JOHN CLIVE WITHERSPOON  Applicants
SALLY ANNE WITHERSPOON

v

ROBERT WILLIAM HUTSON  Respondents
ROBERT WILLIAM BUCKBY
MARK FRANCIS XAVIER MENTHA

BRISBANE

FRIDAY, 7 NOVEMBER 2014

JUDGMENT

MUIR JA:  This application for stay was brought on for urgent hearing.  For all practical purposes, it has to be determined today.  There are two other such matters waiting to be heard.  Accordingly, my reasons, of necessity, must be brief.

The primary Judge made an order on 29 October 2014 which, in effect, required the respondents, the applicants in this application for a stay, to deliver up possession of certain cattle properties and stock to the respondent receivers.  The applicants have appealed against the primary Judge’s orders and seek a stay from those orders pending appeal.

It must be said that the applicants’ case, or at least the arguments put forward in support of the case that they propose to advance on trial, do not strike me as particularly strong.  I have a suspicion that this is one of those cases where borrowers would be better off facing the seemingly inevitable rather than pursuing litigation with the result that the size of the debt they are ultimately faced with becomes higher and higher.  However, I’m not persuaded that their case is unarguable.

The primary judge gave careful consideration to the arguments advanced before him.  He placed a great deal of emphasis in his determination on his finding that no interest had been paid for a considerable period.  Counsel for the applicants contends that his Honour was wrong in that regard.  In fairness to his Honour, the argument advanced this afternoon was not presented to his Honour, and I have a degree of scepticism about it.  It may well be that when some evidence is adduced as to the circumstances in which the relevant bank entries were prepared and their purposes that it may be seen that there is little or nothing in the applicant’s point or points.  However, for the moment, it does seem to me that a prosecution that is at least an arguable has been raised.

Another matter relied on by counsel for the respondents was the unlikelihood that any damages recoverable by the applicants could possibly overtop the amount eventually payable by them to the respondent bank.  Again, it seems to me that this is a grave difficulty for the applicants, but on the state of the evidence, it’s impossible to conclude with any certainty that the applicants won’t be able to be ultimately successful in that regard.

The other matter which causes me concern is that there seemed to be a degree of confusion in the way the applicants’ case was presented at first instance.  It appears to me that the applicants were informing the primary judge that the matter wasn’t ready for hearing; that they weren’t in a position to cross-examine and implicitly that the matter couldn’t go ahead before him.  His Honour didn’t appear to have understood what was being said to him in that way.  His Honour can’t be blamed for that having regard to the somewhat circuitous way in which these propositions were advanced, without a strong or firm clear stand being taken in relation to the inability to proceed and the inability to cross-examine.  Nevertheless, it does seem to me that those points were being made.

It is certainly a case, I think, where some more work on the evidence could have been done in order to clarify the issues and to highlight or clarify the critical parts of the evidence.  A particular example of this is the points made before me in relation to whether or not interest had continued to be paid.  As for the balance of convenience, the applicants point out that the property can’t be sold, realistically, until about May of this year.  If the property is sold, the applicants in my view will suffer irretrievable harm.  They will have lost properties which have been owned by them and their family for generations.  Perhaps more significantly than that, they will lose what is claimed to be a critical part of their farming operations.

There is no doubt that the cattle and properties will need care and attention, but it doesn’t seem to me that any stay should interfere with that, having regard to – in part, to the undertakings given by the respondents, which will continue and will not be affected by the stay that I’m about to order.

For those reasons, I order that the order made herein on 29 October 2014 be stayed pending the determination of the appeal against that order or until earlier order.  I order that the costs of the application be reserved.

MR SAVAGE:  Can we say something about the form of the order ‑ ‑ ‑ 

MUIR JA:  Yes.

MR SAVAGE:  ‑ ‑ ‑ that your Honour’s just pronounced.  We understood that the undertakings that had been proffered to Justice Flanagan and to Justice Jackson were to be continued and that was part of the ‑ ‑ ‑

MUIR JA:  Yes.

MR SAVAGE:  ‑ ‑ ‑ balance of convenience if I ‑ ‑ ‑

MUIR JA:  That’s certainly what I intend.

MR SAVAGE:   Yes.  There were a series of undertakings about inspections of books and records ‑ ‑ ‑

MUIR JA:  There are other ‑ ‑ ‑

MR SAVAGE:  ‑ ‑ ‑ maintaining books and ‑ ‑ ‑

MUIR JA:  ‑ ‑ ‑ undertakings, are there, apart from the ones mentioned in the order?

MR SAVAGE:  Yes.  They weren’t thought – they were there until Justice Jackson – because the time was short between the date his Honour made the order and the date the receivers were to take possession.  It wasn’t thought necessary to continue for the 14 days, but ‑ ‑ ‑

MUIR JA:  Can I just add this: nothing in this order shall affect the continuation of any undertakings outstanding at the date of this order.

MR SAVAGE:  Well, except that they were all limited in point of time.  So they all in fact have expired, except the ones which – contained in Justice Jackson’s order.

MR KEANE:  Your Honour, in relation to that, we’re – we are prepared to give those undertakings, and we will give those undertakings.  We’re prepared to have those formalised in an order before the Court, and I’m prepared to do that in consultation with the respondents.

MR SAVAGE:  Well, we’re content with that.

MUIR JA:  All right.  The order then will incorporate the undertakings agreed by the parties and initialled by me.