Martin v Individual Homes Pty Ltd (in liq) [1999] FCA 1869 (23 December 1999)

Last Updated: 18 January 2000

FEDERAL COURT OF AUSTRALIA

Martin v Individual Homes Pty Ltd (In Liq) [1999] FCA 1869

ANTHONY GILBERT MARTIN & ANOR v INDIVIDUAL HOMES PTY LIMITED (IN LIQUIDATION) & ANOR

A 105 OF 1999

FINN J

CANBERRA

23 DECEMBER 1999

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 105 of 1999

BETWEEN:	ANTHONY GILBERT MARTIN First Appellant SUE DELORES MARTIN Second Appellant
AND:	INDIVIDUAL HOMES PTY LIMITED (IN LIQUIDATION) First Respondent BARRY ANTHONY TAYLOR Second Respondent
JUDGE:	FINN J
DATE OF ORDER:	23 DECEMBER 1999
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1. the notice of motion be dismissed with costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 105 of 1999

BETWEEN:	ANTHONY GILBERT MARTIN First Appellant SUE DELORES MARTIN Second Appellant
AND:	INDIVIDUAL HOMES PTY LIMITED (IN LIQUIDATION) First Respondent BARRY ANTHONY TAYLOR Second Respondent

JUDGE:	FINN J
DATE:	23 DECEMBER 1999
PLACE:	CANBERRA

EX TEMPORE REASONS FOR JUDGMENT

1 I have before me a notice of motion brought by Anthony Gilbert Martin and Sue Delores Martin against Individual Homes Pty Limited (In Liquidation) ("Individual Homes") and Barry Anthony Taylor, who is the liquidator of the company, seeking the stay of execution of a judgment given by Higgins J of the Supreme Court of the Australian Capital Territory on 16 December 1999 until the conclusion of the hearing of an appeal. The judgment in question is one which gave to the first respondent, Individual Homes, the right to enter judgment for possession of property situated at 8 Grund Place in Kambah. The applicants on the notice of motion, the Martins, are in occupation of that premises at the moment and the purpose of their stay application, if I can put it shortly, is to allow them to remain there until the appeal is heard.

2 This particular matter is part of an ongoing controversy that has a long history in the courts in the Australian Capital Territory. It has led to a number of appeals to the Full Court of this Court and to applications for special leave to the High Court of Australia. That history is set out in short form in paras 1 to 11 of the judgment of Higgins J. The application that was before Higgins J was for summary judgment, the claim being one for possession of property. I need not advert directly to the tests to be applied by Higgins J in an application of that sort. His Honour clearly addressed the matter in an appropriate fashion so far as the relevant principles were concerned. His Honour found that the then defendants, the Martins, were in occupation of the premises in question at Kambah without the consent of the registered proprietor. The registered proprietor was the plaintiff in the application.

3 Having considered the circumstances of the tenancy, which his Honour concluded to be a tenancy at sufferance, the previous tenancy at will having been terminated by a notice to quit, his Honour said that the plaintiff would be entitled to the relief sought subject to there being an arguable defence. Mr Martin raised some number of possible defences before Higgins J. They touched various matters: whether the action for possession was statute-barred; whether the occupation by the Martins was protected by the Landlord and Tenant Act 1949 (ACT); whether mortgages that had been given to several banks were in some fashion defective; whether a vesting order had to be obtained by the liquidator as a condition precedent to taking these proceedings, and so on.

4 In each instance his Honour found that Mr Martin had not demonstrated an arguable defence. In consequences of his so finding, Higgins J made the order that is now appealed from. Put in short form, and I here refer to the affidavit sworn by Mr Martin, the essence of the claim made to justify the stay is that the subject matter of the appeal will be destroyed if a stay is not extended. By "subject matter of the appeal", what Mr Martin has in mind is the occupancy he and his family currently have of the Kambah property, an occupancy which he describes as "of the family home", or "of the matrimonial home", and it is the loss of that occupancy that he wishes to prevent.

5 It is the case, though, that the description of the property in the terms in which Mr Martin refers to it does not reflect the true legal relationship of the Martins to that property. They are, as I have indicated, tenants at sufferance and they do not have any registrable interest in the property itself.

6 The second matter upon which Mr Martin relies is the assertion that he is entitled to a stay order as of right under provisions of the Landlord and Tenant Act. It is the case, however, that that Act was repealed by the Residential Tenancies (Consequential Provisions) Act 1998 (ACT). It is not clear to me at all how that Act can have any bearing on stay proceedings at this stage.

7 The relevant principles to be applied on a stay application are not controversial. They were referred to by Heerey J in Henderson v Amadio Pty Ltd (1996) 136 ALR 593, and I will not set out his Honour's reasoning in that case at any length. Suffice it to say the starting point for consideration of a stay application is the prima facie proposition that a successful party is entitled to the benefit of a judgment it obtains and the Court is entitled to commence with a presumption the judgment is correct.

8 Equally, when one is looking at the requirements which need to be fulfilled in order that there be a stay, the two prime requirements are that the subject matter of the appeal would be lost if the appeal was successful; and, secondly, there should be arguable grounds of appeal. In relation to the present matter, I have indicated that if a stay was to be granted, I would require an undertaking be given to the Court that no steps be taken to dispose of the property at Kambah until the appeal had been determined. The respondents to the notice of motion are prepared to give such an undertaking.

9 While, in a sense, it may be said that the subject matter of the appeal is simply the occupancy the Martins currently have of the Kambah property, that subject matter will not be destroyed in my view if the appeal is successful, provided the property is not disposed of. If the appeal is successful, it will then need to be determined whether they are entitled to possession and, if so, in what circumstances.

10 When one turns to the grounds of appeal themselves, Mr Martin has set out 12 grounds (although one has been omitted from the notice of appeal as filed which is simply that the judgment is null and void). The first group of grounds simply refer to the judgment either being wrong in law, null and void, or perverting the course of justice. The allegations of perverting the course of justice I pass by without comment, though deprecating the practice.

11 Much that is contained in the grounds of appeal relies in one way or another on the history of this matter in other proceedings. It is difficult in these circumstances to come to any conclusion as to the extent to which much of what is being relied upon is arguable in any event. The appeal Court, in effect, is being invited to traverse a deal of what has previously been decided. On the material that I have before me it is not obvious that the appeal that is being prosecuted by the Martins is a strong one. I am not prepared on the material before me, and in the time and given the haste that has been required in this matter, to say that the appeal is totally unarguable. Only to that extent, I am prepared to say there is an arguable case to be put by Mr Martin.

12 Because I am of the view, subject to the undertaking that has been given, that the property which is the essential subject matter of the appeal will not be disposed of pending its outcome, and that the appeal itself does not appear on the material before me to be a particularly strong one, I do not consider the case to be an appropriate one in which to order a stay.

13 I should, however, emphasise the importance that I attribute to the undertaking. The Full Court in this Court is, as I understand it, currently reserved in an appeal between the same parties. The decision of the Court in that matter may in fact have some bearing upon this matter in the event that it is decided favourably to Mr Martin.

14 While expressing no view at all on the likelihood of success of Mr Martin in that appeal, I nonetheless think it appropriate additionally to ensure that the judgment in that Court may not be rendered nugatory, if favourable to Mr Martin, by any action that is taken in this case. There may, for example, be found to be some fatal flaw in the foundation on which the liquidation and the respondents' claim are based.

15 Both for the purposes of preserving the status quo so far as the retention of the property is concerned and also because of the related proceedings in this Court, I will require the undertaking to the Court foreshadowed and which has been proffered. The order of the Court then will be that the notice of motion seeking this stay is dismissed.

I certify that the preceding fifteen (15) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn.

Associate:

Dated: 12 January 2000

The Appellants appeared in person
Counsel for the Respondent:	Mr M Brennan
Solicitor for the Respondent:	Mallesons Stephen Jaques
Date of Hearing:	23 December 1999
Date of Judgment:	23 December 1999