PROCEDURE - judgments and orders - application for stay of judgment pending appeal - no proper basis for stay demonstrated
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PROCEDURE - judgments and orders - application for stay of judgment pending appeal - no proper basis for stay demonstrated
Judgment (5 paragraphs)
[1]
Background and history
There was an earlier round of litigation between these parties which was finalised by a Deed of Release entered on 18 September 2009. A second round of litigation commenced in 2013, with RMS taking proceedings against Ms Young in the Local Court claiming unpaid rent on the mooring. Ms Young filed a defence and a cross-claim, in which she alleged misconduct on the part of RMS and the State of New South Wales. On 17 December 2015 (after many more skirmishes, outlined in the 2016 judgment) Button J ordered that the Local Court proceedings be transferred to the Supreme Court.
However, on 22 April 2016 Button J struck out Ms Young's then current defence and cross-claim. Ms Young unsuccessfully sought leave to appeal to this Court against (inter alia) that order. That application was dismissed by the 2016 judgment.
On 17 January 2017 consent orders were made in this Court, the details of which do not need to be outlined. What is presently material is that RMS undertook not to seek judgment against Ms Young pending her then proposed application for leave to appeal to the High Court of Australia, and not to do so within a period of 28 days after dismissal of the application (if that were the result). Ms Young did seek, and, on 11 October 2017, was refused, special leave to appeal: Young v Roads and Maritime Services [2017] HCASL 243. Among the orders against which Ms Young sought leave to appeal was the order of this Court in the 2016 judgment dismissing the application to appeal against the order of Button J striking out Ms Young's pleadings. Accordingly, after the decision of the High Court, there was no operative defence to RMS's claim, and no extant cross-claim. Ms Young has not, since the High Court decision, sought to file any amended defence or cross-claim.
The undertaking given by RMS expired 28 days after the order of the High Court refusing special leave, that is on 8 November 2017.
Prior to the expiration of RMS's undertaking, on 20 October 2017, Ms Young wrote to the solicitors for RMS. She said:
"Proposal 1
In view of the position, and to speed up the process before I take any further steps for any amendments in the proceedings, I intend to approach the Court for leave for a Trial to hear and determine the Default Motion on the originating process filed on 4 July 2014 …
Proposal 2
This proposal can be heard at the same time as the Trial for unliquidated damages in Proposal 1. Please be put on Notice any further amendment to the pleadings will include new directly related causes of action for the periods 2010 to the date of judgment, including for consequential loss to me for the increased property values because of the annual housing growth in Mosman …"
On 9 November 2017, the day following the expiration of RMS's undertaking, by notice of motion filed in the Supreme Court, RMS applied for default judgment. On 13 November default judgment was entered pursuant to which Ms Young was ordered to pay to RMS $8,661.14 (for unpaid rent). On 16 November 2017 Ms Young filed a notice of motion seeking a stay of the default judgment. That notice of motion was dismissed by Schmidt J on 23 November 2017. On 6 December 2017 Ms Young filed a notice of motion in the Supreme Court seeking, inter alia, an order setting aside the default judgment. That notice of motion came before Latham J on 15 December 2017. Her Honour dismissed the application: Roads and Maritime Services v Maureen Mary Young (NSW Supreme Court, 15 December 2017, unreported).
On 9 January 2018 RMS issued a Notice of Termination of Lease to Ms Young.
On 23 January 2018, Ms Young filed a summons in this Court, seeking leave to appeal against the decision of Latham J. She also seeks:
"2 Leave to appeal to reopen relevant parts of the decision of the Court of Appeal … given on 1 September 2016.
…
6 For a five bench Court of Appeal to convene and reopen its decision of 1/9/2016 to correct error and apply clarity of the correct legal analysis applicable to the claim; to confirm finality so any necessary further application for special leave to the High Court can be properly appealed."
On the same day (23 January 2018), Ms Young filed a notice of motion. That notice of motion is the subject of this judgment. The orders she seeks are stated as follows:
"1 For a permanent Stay of Execution be ordered forthwith against the Roads and Maritime Service to prohibited it from implementing the Default Order for Liquidated Damages dated 13 November 2017 and their taking steps to evict the Applicant from her home until a final determination of all the disputed claims on appeal are made and the Stay of Execution order lifted by the Court.
2 For a further injunctions and permanent Stay prohibiting the Roads and Maritime Service its Officers and Agents, from the interference with the Applicant occupation or the Premises or for any other matters relating to the subject lease … its Notice of Default under Lease dated 16 November 2017, Letter of Demand dated 1 December 2017, Notice of Termination of Lease dated 9 January 2018 to be permanently in place until lifted by the Court on the final determination of all claims in dispute."
Inserted into the notice of motion was the following notation:
"The Applicant seeks the orders sought in this Motion to be made by the Court of Appeal, for Stay and Injunctions against the Roads and Maritime Services, (RMS) necessary to protect her from eviction procedures and default judgment sought by the RMS which are the subject matters of her causes of action and appeals, now required in absence of her two written request for the Stay/Injunctions not being replied to by the RMS; and her two Motions filed in the Supreme Court which included Stay/Injunction orders be granted, being dismissed. The orders granted to remain until the Appeal processes are fully finalised. The reasons are set out in the Applicant's Affidavit dated 23 January 2018."
It may be discerned that what Ms Young seeks is to preserve her position pending the outcome of her application for leave to appeal against the decision of Latham J refusing to set aside the default judgment. Should she be granted leave to appeal, and be successful in her appeal, the default judgment may (depending upon the order of the Court) be set aside. Should she be unsuccessful either in her application for leave, or, if granted leave, in the appeal, RMS would be free to proceed to enforcement of the default judgment.
[2]
The reasons of the primary judge for dismissing the application to set aside the default judgment
Latham J set out at some length the history of the proceedings. She observed that:
"The salient point is that at no stage during the relevant period did the Applicant actually file amended pleadings. Accordingly the basis upon which this court might set aside a validly entered default judgment is distilled in the circumstances of this case to this proposition, namely, can the Applicant demonstrate that she has a meritorious defence to the claim that resulted in the default judgment, that is a meritorious claim in relation to the non-payment of rent since July 2012. The Applicant has not advanced any basis upon which that proposition might be established.
The Applicant acknowledges that she has not paid rent since that time and chose not to do so because she regarded the lease as being in some way invalid or irregular. If the Applicant wished to pursue that claim, namely the irregularity or invalidity of the lease, then she is free to do so and she is free to do so by filing the amended pleading that she has been able to file at a number of junctures since the commencement of these proceedings, both in the Local Court and the Supreme Court …"
[3]
Ms Young's submissions
Ms Young's submissions were contained, essentially, in the insert to the notice of motion which I have set out above. Although she was given every opportunity to do so, she did not identify any error in the judgment of Latham J.
The principles on which a stay might be ordered were stated in Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 at 694-5 and following. The Court said:
"The onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties … The mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears … The Court has a discretion whether or not to grant the stay and, if so, as to the terms that would be fair. In the exercise of its discretion, the Court will weigh considerations such as the balance of convenience and the competing rights of the parties before it …
Two further principles can be mentioned. The first is that where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay … Secondly, although courts approaching applications for a stay will not generally speculate about the appellant's prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interest of the parties, from making some preliminary assessment about whether the appellant has an arguable case. This consideration is protective of the position of a judgment creditor where it may be plain that an appeal, which does not require leave, has been lodged without any real prospect of success and simply in the hope of gaining a respite against immediate execution upon the judgment." (internal citations omitted)
[4]
Determination
In the circumstances of this case, to justify a stay of the execution of the default judgment (which is what Ms Young seeks) it would be necessary that she identify some error in the judgment of Latham J, and that she has an arguable defence on the merits. She has done neither.
Ms Young has been unsuccessful in procuring a stay of the default judgment in her application to Schmidt J; she has been unsuccessful in her application before Latham J to have that judgment set aside. She has produced no evidence to demonstrate that there is a proper basis for a stay such as to nullify the effect of the default judgment. That she has filed no amended defence or cross-claim since the previous iterations were struck out gives no cause for confidence that she has any arguable defence to RMS's proceedings for unpaid rent.
The first order sought by Ms Young is refused.
The second order she seeks is for an injunction restraining RMS from acting upon its Notice of Termination of Lease served 9 January 2018. She has provided no reason why this should be done. As noted by Latham J, she has acknowledged that she has not paid rent for some time and has not advanced any basis upon which it could reasonably be said that RMS is not entitled to act upon the notice of termination. The Notice of Termination of Lease is independent of the default judgment. That order is also refused.
The notice of motion is, accordingly, dismissed.
The orders I make are:
(1) Notice of Motion filed on 23 January 2018 is dismissed;
(2) The applicant (Maureen Mary Young) to pay the respondent's costs of the application.
[5]
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Decision last updated: 01 March 2018
Parties
Applicant/Plaintiff:
Young
Respondent/Defendant:
Roads and Maritime Services
Cases Cited (3)
Judgment
SIMPSON JA: The dispute the subject of the present application has a long and tortured history. It concerns the lease of a mooring near Mosman in Sydney, on which the applicant, Ms Young, has for many years moored her houseboat. The respondent, Roads and Maritime Services ("RMS") is the owner and lessor of the mooring. The history of the litigation resulting from the dispute is largely (although not fully) recorded in a decision of this Court given on 1 September 2016: Young v Roads and Maritime Services [2016] NSWCA 238 ("the 2016 judgment").
The present application was made by notice of motion filed by Ms Young on 23 January 2018, the claims in which are set out at [12] below.
Some appreciation of the history of the proceedings is necessary in order to understand the orders claimed in the notice of motion.