Washburn Pty Ltd v Cardaci

[2022] WASCA 43

Western Australia Court of Appeal

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Appeal
2. › Stay of enforcement pending appeal
3. › Monetary orders
4. › Whether appeal rendered nugatory
5. › Prospect of winding up of corporate appellant
6. › Whether sufficient evidence of insolvency and inability to prosecute appeal
7. › Civil Judgments Enforcement Act 2004 (WA), s 15
1. Appeal
2. › Stay of enforcement pending appeal
3. › Monetary orders
4. › Whether appeal rendered nugatory
5. › Whether amounts paid irrecoverable if appeal succeeds
6. › Litigation funding agreement
7. › Undertaking by litigation funder to repay
1. Appeal
2. › Stay of enforcement pending appeal
3. › Balance of convenience
4. › Whether prejudice to respondent outweighs risk to appellant
5. › No undertaking or security offered by appellants

Quick Take

An applicant for a stay of monetary orders pending appeal on the basis that corporate appellants may be wound up must adduce sufficient evidence of the corporations' financial position and demonstrate that the chain of contingencies leading to the appeal being rendered nugatory is sufficiently likely to occur. The mere assertion that corporations lack assets to pay is insufficient. The decision in Kalifair Pty Ltd v Digi-Tech (Australia) Ltd should be treated with caution, particularly its assumption that winding up automatically stays proceedings brought by a company, which does not reflect the position under the Corporations Act 2001 (Cth).