[1986] HCA 84
Paciocco v Australia and New Zealand Banking Group Ltd (2016) 333 ALR 569
[2016] HCA 28
Rinehart v Welker (2012) 83 NSWLR 347
Source
Original judgment source is linked above.
Catchwords
[1986] HCA 84
Paciocco v Australia and New Zealand Banking Group Ltd (2016) 333 ALR 569[2016] HCA 28
Rinehart v Welker (2012) 83 NSWLR 347
Judgment (3 paragraphs)
[1]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[2]
Judgment
WARD JA: This is an application by notice of motion filed 3 March 2017 for a stay, which was ordered on 23 December 2016 in relation to part of a judgment debt, to be lifted. The background to the present dispute may be gleaned from the decision of this Court on 24 November 2016 in Wu v Ling [2016] NSWCA 322.
In that decision, this Court dismissed an appeal by the appellant (Ms Wu) from the decision of Button J in the Common Law Division of the Supreme Court and allowed a cross appeal by the respondent (Mr Ling). Judgment was entered for Mr Ling for the principal amount of the debt and contractual interest on all loans up to 24 November 2016. The Court ordered that the parties were to agree on the calculation of the amount to be entered as judgment for Mr Ling and provide that calculation in a short minute of order delivered to the chambers of the presiding judge by 9 December 2016, and that the relevant order be made in chambers. Judgment was subsequently entered in this Court on 14 December 2016 in the amount of $3,086,424.71 (Wu v Ling (No 2) [2016] NSWCA 356).
Ms Wu then made an application for a stay of that judgment. That application was heard in this Court on 22 December 2016 (Wu v Ling (No 3) [2016] NSWCA 381). A stay was granted only to the extent of $1,824,800.58 until the hearing and determination of any application by Ms Wu for special leave to appeal to the High Court of Australia and - if special leave were to be granted - until the hearing and determination of the appeal.
In the reasons for the grant of that stay, Macfarlan JA noted (at [2]) that the principles to be applied on an application such as was before his Honour were those stated by Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; [1986] HCA 84. Brennan J there said (at 684) that a stay to preserve the subject matter of litigation pending an application for special leave to appeal was "an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted".
Macfarlan JA also noted that more recently, in Rinehart v Welker (2012) 83 NSWLR 347; [2012] NSWCA 1, this Court has rejected the proposition that it is an essential pre-requisite for the grant of a stay that the Court finds that there are substantial prospects of success on the special leave application and acknowledged that there may be cases (albeit rare) when the other factors material to the grant of a stay may be of such significance that a stay should be granted even if the Court is unable to reach the view that the application has substantial prospects of success. Having examined the material before him, Macfarlan JA concluded (at [15]) that he considered Ms Wu to have a substantial prospect of obtaining a grant of special leave to appeal to the High Court in relation to the interest claimed by Mr Ling on the second to fifth loans to the extent to which they exceeded the amount that had been allowed by the primary charge.
Macfarlan JA, in order 2 of the orders made on 23 December 2016, noted for the avoidance of doubt that the balance of the judgment (namely, $1,261,624.13) remained enforceable. Relevantly, Macfarlan JA, in order 3, granted liberty to Mr Ling to apply to this Court on three days' notice to vacate the stay order (order 1) in the event that Ms Wu failed expeditiously to file an application for special leave to appeal to the High Court or to prosecute that application or to prosecute an appeal in the event that special leave to appeal were granted.
The basis on which the application now comes before the Court is that Ms Wu has not filed an application for special leave to appeal to the High Court since the stay was granted on 23 December 2016, nor has she filed - as would now be necessary - any application for an extension of time for leave to appeal to the High Court.
Mr Ling's solicitor has sworn an affidavit on 2 March 2017 annexing correspondence with Ms Wu in relation to the matter. The solicitor has deposed that his client has instructed other solicitors to commence proceedings to enforce the judgment debt and that - as at the date of the affidavit - statutory notices have been served on Ms Wu in respect of mortgages granted over property at Croydon and Mortdale, respectively. Mr Ling now seeks to enforce the whole of the judgment for an amount slightly in excess of $3 million.
Ms Wu has handed up to Court a statement dated 13 March 2017, which I have read as a submission, in which Ms Wu has noted her reasons for delaying lodgement to the High Court. Her statement says, "My lodgement to High Court will always be delayed due to …" and then sets out a number of matters in bullet point form. Those may be summarised as: a need to finish her study at TAFE; a need to do wide consultation and to get herself equipped with "High Court knowledge"; that she has worked without pay for the last three months due to the requirement of accreditation for her work; that because of her current financial hardship, she needs to weigh the merits of a law firm "between their High Court experience and their demand on their fees" and has not found a suitable law firm yet; and she has made reference to "national wide introduction for all approved aged care providers" as of Monday, 27 February 2017, which she says has delayed her because of the fact that she has had no time to set up her details on the government's My Aged Care website.
The statement also outlines other commitments that have demanded her time and sets out how she has spent her time in the period since the stay was granted. Ms Wu has also tendered certain correspondence and a summary of the residual principal amount owing.
Ms Wu was aware at the time that the stay was granted of the need to proceed expeditiously in relation to the filing of an application for special leave to appeal to the High Court. While she has given reasons for the delay in so doing, no conclusion can be reached other than that she has failed expeditiously to file an application for special leave to appeal.
The enforcement proceedings in relation to part of the judgment debt (around $1.2m) are not affected by there being a stay in place. It has not been established that there will be any prejudice suffered by the stay being lifted in circumstances where there is no suggestion that money recovered as a result of enforcing judgment debt would not later be repayable if an application for special leave to the High Court were to be made, and that application were to be granted, and Ms Wu's appeal were to be successful.
Ms Wu has argued that she has a very strong case in the High Court and appears to be relying upon the High Court judgment in Paciocco v Australia and New Zealand Banking Group Ltd (2016) 333 ALR 569; [2016] HCA 28, in relation to the interest charges being a penalty. That may well be the case, but in the circumstances, I am not satisfied that there has been an expeditious conduct of the application for special leave to appeal and I am not satisfied that this is a case where the successful respondent, Mr Ling, should be deprived of the ability to enforce the judgment that has been obtained.
I therefore grant the application of Mr Ling for the stay ordered on 23 December 2016 to be discharged and in the circumstances, costs should follow the event. I order the appellant to pay the costs of the motion filed on 3 March 2017.
I also note that order 5 of the orders made by Macfarlan JA on 23 December 2016 provides that if the stay is vacated due to a failure of Ms Wu, or Ms Wu delaying in filing, an application for special leave, Ms Wu must pay the costs of the stay application. As I propose to lift that stay, it follows that Ms Wu is liable to pay the costs of that application.
The orders I make are as follows:
1. Grant the application of the respondent for the stay ordered 23 December 2016 to be discharged.
2. The appellant is to pay the costs of the motion filed 3 March 2017.
[3]
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Decision last updated: 29 March 2017