Hold On Don’t Enforce the Judgment, I’ve Lodged an Appeal

This update was co-authored by Jonathan O’Connor, Law Graduate

In our previous article Promised the family property but the promise has been broken – Insight from Currie v Currie [No 2] [2017] WASC 312, we reported on a case where a father was prevented from breaking his promise to give property to his son through a proprietary estoppel claim and highlighted that lengthy and expensive court proceedings can be avoided by obtaining legal advice at an early stage.

The father, Graeme Currie, has appealed the decision and recently applied for an order to suspend enforcement of the judgment until the determination of the appeal. The decision of the application, Currie v Currie [2018] WASCA 30, provides a useful reminder that appealing a judgment is not itself a sufficient reason for the court to suspend enforcement of a judgment.


By way of reminder, the son, Bruce Currie, and his brother Andrew Currie had worked with Graeme on the family farm for most of their lives. At some point, it was agreed that the farm would be split between the three of them despite all of the farm being registered in Graeme’s name. When negotiations to divide the properties fell through, Bruce commenced legal proceedings.

Following trial, Justice Le Miere ordered for Graeme to transfer the relevant properties to Bruce, amongst other things. Graeme has appealed those orders and applied for an order suspending enforcement of the judgment pending determination of the appeal.

The facts relevant to the application for a stay included the following:

  • Bruce had been in possession of the land and machinery without interference from Graeme since the injunction to restrain Graeme from entering the land was granted in 2013;
  • Bruce would not be able to obtain a crucial $300,000 increase to financing if he cannot secure title to the properties. Without that finance, Bruce would likely have to sell his family home; and
  • Bruce was prepared to undertake that, until determination of the appeal, he will not sell or otherwise dispose of or deal with his interest in any of the properties or increase the debt secured by the properties, other than to obtain the $300,000 increase in financing.

The general principles governing the grant of suspension orders were summarised in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307 at [9]:

  • A successful litigant is ordinarily entitled to enforce the judgment pending the determination of any appeal.
  • The grant of a stay is discretionary. The onus is on the applicant for a stay to persuade the court to exercise its discretion, which the court will only do if special circumstances are shown justifying the departure from the ordinary rule.
  • The central issue to consider is whether the grant of a stay is necessary to preserve the subject matter or the integrity of the litigation, or where refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal.

His Honour Justice Mitchell ultimately dismissed Graeme’s application as he was not satisfied that special circumstances existed. Relevantly, he noted that but for Bruce’s proposed undertaking, he would have been prepared to grant a stay of the primary judge’s orders. His Honour’s considerations, most relevantly, included:

  • the undertaking offered by Bruce meant that without a stay, the appeal remained of consequence;
  • the undertaking meant that a stay was not necessary to preserve the subject matter or integrity of the litigation; and
  • although some of the appeal grounds had reasonable prospects of success, the balance of convenience did not favour the grant of a stay.

It is a common misconception that enforcement of a judgment is stayed just because a party has appealed. In order to warrant a stay of a judgment, a party must establish:

  • the existence of special circumstances;
  • the appeal has reasonable prospects of success so as to result in the grant of relief to the appellant; and
  • the balance of convenience in favour of a stay.

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.