Federal Court Refuses Claimant’s Request to Stay Sequestration Order

OUTCOME: Refused

Federal Court of Australia

[APPELLANT] v [RESPONDENT] [2022] FCA 362 Appeal from: [RESPONDENT] v [APPELLANT] [2022] [NAME] 183

File number(s): QUD 103 of 2022

Judgment of: [NAME[NAME] of judgment: 7 April 2022

Catchwords: PRACTICE AND PROCEDURE – application for interim orders to stay sequestration order of Federal Circuit and Family Court of Australia – whether arguable point on the proposed appeal or rational prospect of success –balance of convenience

Legislation: Bankruptcy Act 1966 (Cth) Federal Court of Australia Act 1976 (Cth) Federal Court Rules 2011 (Cth) Magistrates Courts Act 1921 (Qld) Uniform Civil Procedure Rules 1999 (Qld)

Cases cited: [COMPANY] v [COMPANY] [COMPANY] [2008] QCA 322 [NAME] v [NAME] (No 2) [1935] 52 CLR 713 [NAME] v [NAME] (No 4) [2022] FCA 51 [NAME] v [NAME] [1981] FCA 3 [NAME], in the matter of [NAME] (No 2) [2018] FCA 1032 [COMPANY] v Road Safety Remuneration Tribunal (No 2) [2016] FCAFC 58 [NAME] v The Queen [2016] [NAME] 9 [NAME] [COMPANY] v Compton [2017] [NAME] 28 [NAME] v [NAME] Commission [2021] FCA 175 [RESPONDENT] v [APPELLANT] [2022] [NAME] 183 Wynch v Ketchell [2001] QCA 391

Division: General Division

Registry: Queensland

National Practice Area: Commercial and Corporations

Sub-area: General and Personal Insolvency

Number of paragraphs: 66

Date of hearing: 6 April 2022

Solicitor for the Applicant: [redacted]

Counsel for the Respondent: [redacted]

Solicitor for the Respondent: [redacted]

BETWEEN: [APPELLANT] Applicant

[RESPONDENT] Respondent

order made by: [NAME[NAME] OF ORDER: 7 APRIL 2022

THE COURT ORDERS THAT:

1. The interim orders sought by the appellant in her notice of appeal filed on 30 March 2022 be refused. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

[NAME[NAME] 1 On 30 March 2022 the appellant, Ms [APPELLANT], filed a notice of appeal from a decision of the Federal Circuit and Family Court in [RESPONDENT] v [APPELLANT] [2022] [NAME] 183. In that decision the [NAME] Judge ordered that a sequestration order be made against the estate of Ms [APPELLANT] under the Bankruptcy Act 1966 (Cth), and that the costs of the petitioning [NAME] be paid out of the [NAME]'s estate. 2 Ms [APPELLANT]'s grounds of appeal are: 1. [NAME] erred acted outside his jurisdiction in saying the applicant exhausted her rights to appeal of the Magistrates Decision which was the basis for the Sequestration Order when an appeal existed in the District Court and the prospects of success are not within his jurisdiction to make, nor did he have all of the material, nor was this a judgement asked of him to make. 2. [NAME] erred in considering the lawyer's fees that was the basis of the sequestration Order are not standard Magistrate fees but Indemnity fees that were never cost assessed and the application to bankruptcy occurred with stay applications on foot and a yet to be decided High Court appeal.

3. The lawyer's fees were double the amount of the time spend in court and the applicant had attempted to settle the car costs before a civil trial began. 4. [NAME] failed to consider the time of the hospital period and that the appellant had provided to him that the matter was before the court on appeals with a stay, hours before his hearing and that he knew a District appeal was being filed the day of the hearing which would impact on the quantum that caused the decision and that the appellant did not provide evidence of not being [NAME] as the whole matter was part of a jurisdiction appeal being challenges through another court. (errors in original) 3 Ms [APPELLANT] also sought the following interim orders:

1. Interim orders are sought to restrain and stop the appointed Trustee [NAME] from [NAME] as a trustee while the matter is under appeal and can be determined.

2. The Appellant requests that she can continue to act in her full capacity as if the bankruptcy order had never been made while the matter is under appeal as agency clients need to be paid, there is every chance a trustee and or a receiver will act incompetently and do untold damage as this has been the result of a previous receiver placed over the applicants deceased fathers business on his passing. 4 It is only the interim relief which was the subject of submissions yesterday, requiring determination. 5 For the following reasons this relief should be refused.

Background 6 In summary, Ms [APPELLANT] and Mr [RESPONDENT] were involved in a motor vehicle accident on 27 July 2016. As a result the Queensland Police Service issued a traffic infringement notice to Ms [APPELLANT] for the offence of failing to give way to a vehicle at an intersection with a stop sign. Ms [APPELLANT] contested the infringement in the Queensland Magistrates Court, however Ms [APPELLANT] was convicted and fined. 7 Ms [APPELLANT] appealed her Magistrates Court conviction to the District Court of Queensland. 8 Mr [RESPONDENT] had vehicle insurance with [NAME] ([NAME]). On 24 May 2017 [NAME] commenced civil proceedings in the Magistrates Court seeking loss and damages in the sum of $13,396.00 against Ms [APPELLANT] in respect of damage to Mr [RESPONDENT]'s vehicle. When [NAME] became aware of Ms [APPELLANT]'s District Court appeal in respect of her conviction it elected not to take further steps until the appeal was finalised. 9 On 1 December 2017 the District Court dismissed Ms [APPELLANT]'s appeal. An appeal against the decision of the District Court was dismissed by the Court of Appeal of Queensland on 16 August 2018. 10 [NAME] then proceeded with its civil claim against Ms [APPELLANT]. On 4 December 2020 [NAME] [APPELLANT] found in favour of [NAME]. The total sum awarded totalled $39,506.86, being damages, costs, interest and witness expenses. 11 On 15 January 2021 Ms [APPELLANT] filed an appeal in the Court of Appeal of Queensland against the decision of [NAME] [NAME]. The appeal was dismissed by the Court of Appeal on 16 February 2021. 12 On 29 September 2021 [RESPONDENT] on behalf of the respondent served a bankruptcy notice on Ms [APPELLANT]. 13 Ms [APPELLANT] filed: A stay application in the Court of Appeal against the order of 16 February 2021. This was dismissed on 26 October 2021. A stay application in the Magistrates Court against [NAME] [NAME] judgment of 4 December 2020. This was dismissed on 7 December 2021 by [NAME] [NAME]. 14 On 14 December 2021 a [NAME]'s petition was filed against Ms [APPELLANT] seeking a sequestration order against her estate. 15 On 11 March 2022 Ms [APPELLANT] filed an appeal in the District Court of Queensland against the decision of [NAME] [NAME]. 16 On 16 March 2022 the High Court of Australia dismissed Ms [APPELLANT]'s application to set aside the decision of the Court of Appeal of 16 February 2021. 17 The [NAME]'s petition was heard by the [NAME] Judge on 17 March 2022.

[NAME]

JUDGMENT 18 The [NAME] Judge observed:

3. As at the date of the court hearing, the respondent had not filed any document in response to the application. At the hearing, the Court admitted into evidence as Exhibit 1 an amended document dated 14 March 2022, which the applicant advised the Court had not been accepted for filing due to its lack of form. On its face, that document is of no obvious significance. 19 [NAME] then set out the relevant litigation history involving Ms [APPELLANT] and the respondent. [NAME] noted that Ms [APPELLANT] conceded that she had not paid the judgment sum to the applicant, and continued: 5. … The respondent made submissions to the Court to the effect that the Court should stay the further hearing of the sequestration application pending the hearing and determination of a notice of appeal and stay application yet to be filed by her in the District Court of Queensland. The respondent had admitted into evidence as Exhibit 2 a bundle of documents which she submitted showed a good basis for the making of a stay order. 20 [NAME] had regard to Exhibit 2 and observed that he had not identified any document or transcript which could constitute the basis for any reasonable argument that a stay order ought to be made in the present proceeding, continuing: 6. … The respondent has exhausted her avenues of appeal against the Magistrates Court judgement entered against her. Any further appeal proceedings filed by or on behalf of the respondent have no prospects of success. 21 [NAME] had regard to the affidavit material filed on behalf of Mr [RESPONDENT] in support of the making of a sequestration order, including a bankruptcy notice and a [NAME]'s petition. [NAME] observed:

9. The applicant [sic – I understand [NAME] meant the respondent in those proceedings] has failed to provide evidence: (a) As to her solvency as at the date of the hearing before the Court; or (b) That the sequestration order ought not to be made for any other reason.

10. The relevant act of bankruptcy occurred on 1 November 2021, that being the date prior to which the respondent had failed to pay the judgement sum to the applicant after service upon her of the Bankruptcy Notice. 11. [ADDRESS] is satisfied that the judgement sum remains unpaid, and that the respondent is unable to pay her debts as and when they fall due. 12. [ADDRESS] is further satisfied that the respondent was duly served with all relevant documents, and that the applicant has otherwise established that all procedural matters required to be attended to by him have been duly carried out.

13.

Accordingly, a sequestration order is made against the estate of [APPELLANT].

Submissions of the PARTIES 22 Ms [APPELLANT] appeared in person before me. She filed written submissions and made oral submissions at the hearing. In summary Ms [APPELLANT] submitted: The judgment of the [NAME] Judge turned her into a [NAME] for seeking clarification of a point of law raised by the respondent. Section 60 (4) of the Bankruptcy Act supported her claim for relief. In the Magistrates Court proceedings Ms [APPELLANT] was prejudiced by being unable to subpoena witnesses who would have given evidence that she did give way and swerve at the time of the accident involving Mr [RESPONDENT]. The bill of costs used to [NAME] Ms [APPELLANT] was not served on Ms [APPELLANT] prior to the hearing before the [NAME] Judge. The balance of convenience favours Ms [APPELLANT] because • she is finalising her late father's financial affairs, and the recent south east Queensland floods have impacted on this; • her bankruptcy is not founded on an inability to pay, but rather a legal argument; • a stay of the [NAME] decision would allow a District Court appeal to proceed in respect of the decision of [NAME] [NAME]; • Ms [APPELLANT] has been prejudiced by previously following incorrect appellate procedure; and • Ms [APPELLANT]'s status as a real estate agent is imperilled by the sequestration order. The hearing before the [NAME] Judge was scheduled on 17 March 2022, however the High Court decision was not given until late afternoon of 16 March 2022. The respondent misled the District Court based on s 60 (2) and (3) of the Bankruptcy Act when the authority of [NAME] v [NAME] [1981] FCA 3 was against the respondent. The [NAME] Judge erred at [3] when finding that Ms [APPELLANT] had not filed any material in the [NAME] proceedings, when she clearly had. There are further appellate avenues available to Ms [APPELLANT] to set aside the debt the source of her bankruptcy. 23 The respondent was represented by Counsel, and submitted in summary that the relief sought by Ms [APPELLANT] should be refused.

CONSIDERATION 24 Section 29 of the Federal Court of Australia Act 1976 (Cth) provides: Stay of proceedings and suspension of orders (1) Where an appeal to the Court from another court has been instituted: (a) the Court or a Judge, or a judge of that other court (not being the Federal Circuit and Family Court of Australia (Division 2) or a court of summary jurisdiction), may order, on such conditions (if any) as it or he or she thinks fit, a stay of all or any proceedings under the judgment appealed from; and (b) the Court or a Judge may, by order, on such conditions (if any) as it or he or she thinks fit, suspend the operation of an injunction or other order to which the appeal, in whole or in part, relates. (2) This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for or in relation to the stay of proceedings. 25 Further, r 36.08 of the Federal Court Rules 2011 (Cth) allows an appellant to apply to the Federal Court for an order to stay the execution of a proceeding until the appeal is heard and determined. 26 In [NAME] v [NAME] Commission [2021] FCA 175 Abrahams J summarised principles relating to the stay or execution or proceedings under a judgment the subject of appeal, as follows:

10. Rule 36.08 confers a broad discretion. Generally, there must be demonstrated "a reason or an appropriate case" to warrant the exercise of discretion in favour of granting a stay. It is not necessary to establish special or exceptional circumstances for the grant of a stay: [COMPANY] v Data Access Corp [1996] FCA 460; (1996) 67 FCR 65 at 66.

11. Two questions must be considered: first, is there an arguable point on the proposed appeal: [NAME] v [NAME] [COMPANY] [2011] FCA 1494 ([NAME]) at [24] or some "rational prospect of success" in relation to any of the grounds of appeal: [NAME] v [COMPANY] [2005] FCA 761 at [5]; and second, does the balance of convenience favour the grant of a stay: [NAME] at [24], [46].

12. The party seeking the order bears the onus of demonstrating a proper basis for a stay, which must be fair to all parties: [NAME] v [COMPANY] (receivers appointed) (1985) 2 NSWLR 685 ([NAME]) at 695. That party must demonstrate that there is a real risk that it will suffer prejudice or damage if a stay is not granted, which will not be redressed by a successful appeal: [COMPANY] v [NAME]) [COMPANY] v [NAME]) [COMPANY] [2002] NSWCA 383; (2002) 55 NSWLR 737 ([NAME]) at [18]; [COMPANY] v [NAME] Commission [2014] FCA 658 (Flight Centre) at [9(f)]. This requirement will be satisfied if a successful appeal will be rendered nugatory unless a stay is granted: [NAME] v [NAME] Commission [2020] FCA 860 at [11]; [NAME] Commission v [NAME] (Australia) [COMPANY] (No 2) [2003] FCA 864 ([NAME]) at [5]; [NAME] at 695; [NAME] at [18].

13. The successful party at first instance is entitled to presume that the judgment appealed from is correct: [COMPANY] v Data Access Corp [1996] FCA 460; (1996) 67 FCR 65 at 66, citing [COMPANY] (in liq) (unreported, Court of Appeal NSW, 15 December 1976); Flight Centre at [9(b)]; [NAME] v [NAME] Commission [2015] FCA 349; (2015) 106 ASCR 551 ([NAME]) at [11]; [COMPANY] v [COMPANY] (No 2) [2020] FCA 351 at [48], [51]. 27 See also [NAME] v [NAME] (No 4) [2022] FCA 51 at [9]-[10] where [NAME[NAME] adopted the statement of legal principles of [NAME[NAME] in [NAME]. 28 In relation to whether there is an arguable point on the proposed appeal against the [NAME] decision, supporting interim restraint orders, it is my view that there is not. 29 In ground of appeal 1 Ms [APPELLANT] contends that the [NAME] Judge erred in finding that she had exhausted her rights of appeal in respect of the debt, and that [NAME] ought not have formed conclusions about her prospects of success in relevant appeals. 30 Section 52 (1) of the Bankruptcy Act provides: (1) At the hearing of a [NAME]'s petition, the Court shall require proof of: (a) the matters stated in the petition (for which purpose the Court may accept the affidavit verifying the petition as sufficient); (b) service of the petition; and (c) the fact that the debt or debts on which the petitioning [NAME] relies is or are still owing; and, if it is satisfied with the proof of those matters, may make a sequestration order against the estate of the [NAME]. 31 [NAME] noted at [10] that the relevant act of bankruptcy of Ms [APPELLANT] occurred on 1 November 2021, being the date prior to which Ms [APPELLANT] had failed to pay the judgment sum to [NAME] after service upon her of the bankruptcy notice, and at [7] that the [NAME]'s petition was personally served on Ms [APPELLANT] on 29 January 2022. At [11] [NAME] stated his satisfaction that the judgment debt remained unpaid. 32 The submissions of Ms [APPELLANT] at the hearing before me yesterday did not cavil with these findings. 33 To that extent it is difficult to see how the [NAME] Judge erred, when [NAME] was simply applying the provisions of the Bankruptcy Act to the respondent's sequestration application. 34 However Ms [APPELLANT] submitted that the bankruptcy notice issued by the Official Receiver was somehow faulty, because it was in respect of a debt arising from the decision of 4 December 2020 of [NAME] [NAME] which Ms [APPELLANT] sought to appeal to the District Court of Queensland. 35 At the hearing yesterday Ms [APPELLANT] did not take the court to any notice of appeal to the District Court against the decision of [NAME] [NAME]. The only evidence that this is the intention of Ms [APPELLANT] is her evidence from the [NAME]. 36 In my view, however, Ms [APPELLANT]'s prospects of successfully appealing the decision of [NAME] [NAME] (thus seeking to establish error on the part of the [NAME] Judge in the present proceedings) are practically very poor. 37 The judgment debt the subject of the decision of [NAME] [NAME] was $13,396.06 plus costs. The quantum of the judgment debt was below the minor civil dispute limit for the purposes of s 45 of the Magistrates Courts Act 1921 (Qld). While s 45 of the Magistrates Courts Act contemplates appeals to the District Court from the Magistrates Court where the judgment debt is below the minor civil dispute limit, s 45 (2) provides that an appeal shall only lie by leave of the District Court or a District Court judge, who shall not grant such leave to appeal unless the court or judge is satisfied that some important principle of law or justice is involved. 38 Ms [APPELLANT] made numerous submissions which I understood went to the importance of her proposed appeal from the decision of [NAME] [NAME]. 39 Ms [APPELLANT] submitted, inter alia, that her criminal conviction for the traffic infringement was reliant on a Queensland Traffic Crash Report, however the report was headed by a Disclaimer to the effect that the Queensland Police service in no way warranted and would not be held liable for the accuracy, correctness, currency or otherwise of the information set out in the report. 40 In this regard I note the submission by Ms [APPELLANT] that an error has been made by the [NAME] Judge in respect of the application of s 60 (4) of the Bankruptcy Act to her case. Insofar as I understand this submission, Ms [APPELLANT] contends that "a personal wrong" was done to her in respect of that Crash Report for the purposes of s 60 (4). 41 In its entirety, s 60 provides: Stay of legal proceedings (1) [ADDRESS] may, at any time after the presentation of a petition, upon such terms and conditions as it thinks fit: (a) discharge an order made, whether before or after the commencement of this subsection, against the person or property of the [NAME] under any law relating to the imprisonment of fraudulent debtors and, in a case where the [NAME] is imprisoned or otherwise held in custody under such a law, discharge the [NAME] out of custody; or (b) stay any legal process, whether civil or criminal and whether instituted before or after the commencement of this subsection, against the person or property of the [NAME]: (i) in respect of the non-payment of a provable debt or of a pecuniary penalty payable in consequence of the non-payment of a provable debt; or (ii) in consequence of his or her refusal or failure to comply with an order of a court, whether made in civil or criminal proceedings, for the payment of a provable debt; and, in a case where the [NAME] is imprisoned or otherwise held in custody in consequence of the non-payment of a provable debt or of a pecuniary penalty referred to in subparagraph (i) or in consequence of his or her refusal or failure to comply with an order referred to in subparagraph (ii), discharge the [NAME] out of custody. (2) An action commenced by a person who subsequently becomes a [NAME] is, upon his or her becoming a [NAME], stayed until the trustee makes election, in writing, to prosecute or discontinue the action. (3) If the trustee does not make such an election within 28 days after notice of the action is served upon him or her by a defendant or other party to the action, he or she shall be deemed to have abandoned the action. (4) Notwithstanding anything contained in this section, a [NAME] may continue, in his or her own name, an action commenced by him or her before he or she became a [NAME] in respect of: (a) any personal injury or wrong done to the [NAME], his or her spouse or de facto partner or a member of [NAME]; or (b) the death of his or her spouse or de facto partner or of a member of [NAME]. Note: See also subsection 5(6). (4A) Notwithstanding paragraph (1)(b), this section does not empower the Court to stay any proceedings under a proceeds of crime law. (5) In this section, action means any civil proceeding, whether at law or in equity. 42 Plainly, s 60 (4) applies to stay of proceedings initiated by the [NAME] prior to bankruptcy. I understand that Ms [APPELLANT] asserts that she may continue to prosecute appeals in respect of Magistrates Court decisions adverse to her (presumably in this case, the decisions of [NAME] and [NAME] [NAME]), in particular in respect of her criminal conviction and the judgment debt. 43 I am unable to identify how s 60 (4) assists Ms [APPELLANT] in the present proceedings. It is not apparent that this section was in issue before the [NAME] Judge in determining whether to make the sequestration order. More relevantly none of Ms [APPELLANT]'s litigation antecedent to the present proceedings appeared to concern any personal injury or wrong done to Ms [APPELLANT], or the death of her spouse, partner or family member. "Personal injury or wrong" in the context of what is now s 60 (4) of the Bankruptcy Act was explained by [NAME[NAME] in [NAME] v [NAME] (No 2) [1935] 52 CLR 713 at 721 as follows: The plaintiff says that he himself is entitled to prosecute it under the proviso as an action for personal injury or wrong done to himself. The test appears to be whether the damages or part of them are to be estimated by immediate reference to pain felt by the [NAME] in respect of his mind, body or character and without reference to his rights of property ([NAME] v [COMPANY] (1920) AC 102 at 111 and 128-133). 44 As a general proposition the existence of a Disclaimer on the Crash Report does not of itself mean that the report is a discredited document. The existence of this Disclaimer, and any grievance Ms [APPELLANT] may have in relation to it, could not give rise to a "personal injury or wrong" to Ms [APPELLANT], by anyone, for the purposes of s 60 (4) of the Bankruptcy Act. 45 No principle of law is in issue in respect of the application of s 60 (4) of the Bankruptcy Act – the section simply does not apply. 46 Ms [APPELLANT] also submitted that the [NAME] Judge erred in finding that she had not filed any material in the proceedings before [NAME], when she submitted she plainly did. I note the affidavit dated 14 March 2022, filed by Ms [APPELLANT] in the proceedings before the [NAME] Judge, and now annexed to the affidavit marked as Exhibit 1(A) in the present Federal Court proceedings. I have already referred to para [3] of [NAME]'s reasons where the [NAME] Judge noted the affidavit there had been admitted into evidence, but was of no obvious significance to those proceedings. 47 Ms [APPELLANT]'s affidavit dated 14 March 2022 annexed material described in the affidavit as:

1. The decision of [NAME] [NAME] delivered on 7 December 2022;

2. Correspondence of [NAME] [APPELLANT] denying the decision to be handed to the applicant. 3. [NAME]'s decision held by the Department of Justice.

4. Application for Special Leave to the High Court.

5. Affidavit of Service to the High Court to [RESPONDENT].

6. District Court of Appeal Application.

7. Hearing transcript of [NAME] [APPELLANT] with no service of material to the applicant. No adjournment was provided.

8. Transcript of stay hearing to Justice Fraser, the costs told to [NAME] was for a 3 day trial when really 1.2 days and a judgment.

9. The costs of the car was turned down by [RESPONDENT] prior to trial.

10. High Court application for the [NAME]. 48 It is unclear to me how the observation of [NAME], that this material was of no obvious significance to the question whether a sequestration order ought be made, would constitute an appellable error. 49 I also note that, insofar as appears on the material before me, there is no suggestion that before [NAME] Ms [APPELLANT] sought to establish for the purposes of s 40 (1)(g) of the Bankruptcy Act that she had a counter-claim, set-off or cross demand equal to, or more than, the sum claimed in the respective bankruptcy notice, being a counter-claim, set-off or cross demand she could have set up in the Magistrates Court proceedings wherein the judgment against her was obtained. 50 Finally, and ultimately, any appeal against decisions of either [NAME] [NAME] or [NAME] [NAME] would be subject to the Uniform Civil Procedure Rules 1999 (Qld) (Wynch v Ketchell [2001] QCA 391). Under those rules Ms [APPELLANT] had 28 days to appeal. Those time periods have clearly long expired, and no evidence is before me that any extensions of time have been granted. 51 In my view ground of appeal 1 from the decision of the [NAME] Judge has no prospect of success. 52 In grounds of appeal 2 and 3 against the decision of the [NAME] Judge, Ms [APPELLANT] claims error on the part of [NAME] in respect of costs ordered by [NAME] [NAME] on 4 December 2020. 53 In respect of ground of appeal 2, Ms [APPELLANT] describes the error as "in considering the lawyer's fees that was the basis of the sequestration Order are not standard Magistrate fees but Indemnity fees that were never cost assessed and the application to bankruptcy occurred with stay applications on foot and a yet to be decided High Court appeal." Ground of appeal 3 refers to costs incurred by [RESPONDENT], presumably being [RESPONDENT] of the respondent, and presumably in respect of the proceedings before [NAME] [NAME] (although this is unclear). 54 As the High Court explained in [NAME] [COMPANY] v Compton [2017] [NAME] 28, the question raised by s 52 of the Bankruptcy Act when the Court is considering whether to make a sequestration order against the estate of a [NAME], is whether there is a debt. The relevant debt for the purposes of the proceedings before [NAME] was that following the order of [NAME] [NAME], namely $13,396.06 plus interests, costs and witness expenses. 55 In this ground of appeal, Ms [APPELLANT] essentially claims error of the [NAME] Judge in failing go behind the judgment of the Magistrates Court awarding costs to the respondent. In [RESPONDENT] however the plurality observed at [68]: For the purposes of s 52 of the Act, a judgment may usually be taken to be sufficient evidence of a debt in that a judgment against a [NAME] in favour of a [NAME] obtained after a trial is, generally speaking, a reliable indication of the true state of indebtedness as between [NAME] and [NAME]. Indeed, such a judgment can usually be expected to provide the most reliable statement of the debt humanly attainable because the ordinary processes of the adversarial system provide a practical guarantee of reliability. The testing of the relative merits of a claim and counterclaim under the rigours of adversarial litigation will usually establish the true state of accounts as between the parties to the proceedings.

Accordingly, a [ADDRESS] will usually have no occasion to investigate whether the judgment debt is a true reflection of the real debt. But where the merits of a claim and counterclaim have not been tested in adversarial litigation, a judgment debt will not have this practical guarantee of reliability. (emphasis added) 56 To the extent that Ms [APPELLANT] in her notice of appeal asserts that the basis of the assessment of costs in the Magistrates Court was wrong, I note relevant observations of [NAME[NAME] in [NAME], in the matter of [NAME] (No 2) [2018] FCA 1032, where [NAME] said:

40. A costs order creates an obligation to indemnify in respect of costs incurred (which is why the indemnity principle must be met before such an order can be made or enforced). No debt can arise from that obligation unless there is a liability on the part of the party who has the benefit of the costs order to pay legal costs in respect of the conduct of the proceedings. In those circumstances, an assessment of costs on taxation is an adjudication that there is a debt which, by operation of the costs order, there is a liability to pay by way of indemnity. (emphasis added) 57 In respect of the relevant decision of [NAME] [NAME] it is unclear on the materials whether the assessment of costs followed taxation. However, costs were ordered by the [NAME] in the amount of $22,741.52 on 4 December 2020 following a trial between the parties in the Magistrates Court. The Magistrates Court has a scale of costs in the UCPR. 58 There is nothing before the Court to support a finding that the [NAME] Judge should have gone behind the decision of [NAME] [NAME]. 59 The "as yet to be decided High Court appeal" is not identified in ground 2 of the notice of appeal. I note in any event however that simply because special leave to the High Court has been sought, that is, of itself, no basis for ordering a stay of a decision: see for example observations of [NAME[NAME] in [NAME] v The Queen [2016] [NAME] 9 at [14], and [NAME] JJ in [COMPANY] v Road Safety Remuneration Tribunal (No 2) [2016] FCAFC 58 at [9]-12]. 60 In my view ground of appeal 2 has no prospect of success. 61 Ground of appeal 3 ground of appeal is vague, imprecise, and relates to issues which could properly have been raised in the Magistrates Court. In my view it is not competent as a ground of appeal. 62 Ground of appeal 4 is vague to the point of meaningless. In my view it has no prospect of success. 63 Insofar as the balance of convenience is concerned, I am satisfied that it favours the respondent. 64 The fact that Ms [APPELLANT] has sought to appeal decisions of the Magistrates Court from several years ago does not, of itself, warrant a stay, either of the decision of the [NAME] Judge or any other decision made in the course of this litigation. 65 Ms [APPELLANT] submits that she holds a real estate agent's licence, and essentially she will lose that licence if she is a [NAME]. While this outcome is plainly prejudicial to Ms [APPELLANT], I am not persuaded that it outweighs the ongoing prejudice to, and costs incurred, by the respondent. 66 This litigation has been taken place over almost six years. It appears that at every stage, in every Court, Ms [APPELLANT] has been unsuccessful in her applications. In the words of [NAME] (as [NAME] then was) in [COMPANY] v [COMPANY] [COMPANY] [2008] QCA 322; [2008] 2 Qd R 453 at 455, the respondent is entitled to the fruits of its judgments, including the decision of the [NAME] Judge. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of the [NAME] [NAME].

Associate: Dated: 7 April 2022