Federal Court of Australia Storry v Weir [2022] FCA 362 Appeal from: Weir v Storry [2022] FedCFamC2G 183 File number(s): QUD 103 of 2022 Judgment of: COLLIER J Date 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: Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] QCA 322 Cox v Journeaux (No 2) [1935] 52 CLR 713 Dyer v Chrysanthou (No 4) [2022] FCA 51 Faulkner v Bluett [1981] FCA 3 Kitay, in the matter of Frigger (No 2) [2018] FCA 1032 National Road Transport Association Ltd v Road Safety Remuneration Tribunal (No 2) [2016] FCAFC 58 Obeid v The Queen [2016] HCA 9 Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 28 Viagogo AG v Australian Competition and Consumer Commission [2021] FCA 175 Weir v Storry [2022] FedCFamC2G 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: The Applicant appeared in person Counsel for the Respondent: P. Van Grinsven Solicitor for the Respondent: SLF Lawyers ORDERS QUD 103 of 2022 BETWEEN: VENETIA LOUISE STORRY Applicant AND: JONATHAN DAVID WEIR Respondent order made by: COLLIER J DATE 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 COLLIER J 1 On 30 March 2022 the appellant, Ms Storry, filed a notice of appeal from a decision of the Federal Circuit and Family Court in Weir v Storry [2022] FedCFamC2G 183. In that decision the primary Judge ordered that a sequestration order be made against the estate of Ms Storry under the Bankruptcy Act 1966 (Cth), and that the costs of the petitioning creditor be paid out of the bankrupt's estate. 2 Ms Storry's grounds of appeal are: 1. His Honour 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. His Honour 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. His Honour 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 bankrupt as the whole matter was part of a jurisdiction appeal being challenges through another court. (errors in original) 3 Ms Storry also sought the following interim orders: 1. Interim orders are sought to restrain and stop the appointed Trustee David Clout from acting 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 Storry and Mr Weir 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 Storry for the offence of failing to give way to a vehicle at an intersection with a stop sign. Ms Storry contested the infringement in the Queensland Magistrates Court, however Ms Storry was convicted and fined. 7 Ms Storry appealed her Magistrates Court conviction to the District Court of Queensland. 8 Mr Weir had vehicle insurance with RACQ Insurance (RACQ). On 24 May 2017 RACQ commenced civil proceedings in the Magistrates Court seeking loss and damages in the sum of $13,396.00 against Ms Storry in respect of damage to Mr Weir's vehicle. When RACQ became aware of Ms Storry'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 Storry'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 RACQ then proceeded with its civil claim against Ms Storry. On 4 December 2020 Acting Magistrate Smith found in favour of RACQ. The total sum awarded totalled $39,506.86, being damages, costs, interest and witness expenses. 11 On 15 January 2021 Ms Storry filed an appeal in the Court of Appeal of Queensland against the decision of Acting Magistrate Smith. The appeal was dismissed by the Court of Appeal on 16 February 2021. 12 On 29 September 2021 SLF Lawyers on behalf of the respondent served a bankruptcy notice on Ms Storry. 13 Ms Storry 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 Acting Magistrate Smith's judgment of 4 December 2020. This was dismissed on 7 December 2021 by Acting Magistrate Turra. 14 On 14 December 2021 a creditor's petition was filed against Ms Storry seeking a sequestration order against her estate. 15 On 11 March 2022 Ms Storry filed an appeal in the District Court of Queensland against the decision of Acting Magistrate Turra. 16 On 16 March 2022 the High Court of Australia dismissed Ms Storry's application to set aside the decision of the Court of Appeal of 16 February 2021. 17 The creditor's petition was heard by the primary Judge on 17 March 2022. PRIMARY JUDGMENT 18 The primary 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 His Honour then set out the relevant litigation history involving Ms Storry and the respondent. His Honour noted that Ms Storry 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 His Honour 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 His Honour had regard to the affidavit material filed on behalf of Mr Weir in support of the making of a sequestration order, including a bankruptcy notice and a creditor's petition. His Honour observed: 9. The applicant [sic – I understand his Honour 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. The Court 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. The Court 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 Venetia Louise Storry. Submissions of the PARTIES 22 Ms Storry appeared in person before me. She filed written submissions and made oral submissions at the hearing. In summary Ms Storry submitted: The judgment of the primary Judge turned her into a bankrupt 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 Storry 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 Weir. The bill of costs used to bankrupt Ms Storry was not served on Ms Storry prior to the hearing before the primary Judge. The balance of convenience favours Ms Storry 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 primary decision would allow a District Court appeal to proceed in respect of the decision of Acting Magistrate Smith; • Ms Storry has been prejudiced by previously following incorrect appellate procedure; and • Ms Storry's status as a real estate agent is imperilled by the sequestration order. The hearing before the primary 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 Faulkner v Bluett [1981] FCA 3 was against the respondent. The primary Judge erred at [3] when finding that Ms Storry had not filed any material in the primary proceedings, when she clearly had. There are further appellate avenues available to Ms Storry 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 Storry 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 Viagogo AG v Australian Competition and Consumer 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: Powerflex Services Pty Ltd 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: Nolten v Groeneveld Australia Pty Ltd [2011] FCA 1494 (Nolten) at [24] or some "rational prospect of success" in relation to any of the grounds of appeal: Burns v AMP Finance Ltd [2005] FCA 761 at [5]; and second, does the balance of convenience favour the grant of a stay: Nolten 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: Alexander v Cambridge Credit Corporation Ltd (receivers appointed) (1985) 2 NSWLR 685 (Alexander) 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: Kalifair Pty Ltd v Digi-Tech (Australia) Ltd, McLean Tecnic Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; (2002) 55 NSWLR 737 (Kalifair) at [18]; Flight Centre Limited v Australian Competition and Consumer 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: Ali v Australian Competition and Consumer Commission [2020] FCA 860 at [11]; Australian Competition and Consumer Commission v BMW (Australia) Ltd (No 2) [2003] FCA 864 (BMW) at [5]; Alexander at 695; Kalifair at [18]. 13. The successful party at first instance is entitled to presume that the judgment appealed from is correct: Powerflex Services Pty Ltd v Data Access Corp [1996] FCA 460; (1996) 67 FCR 65 at 66, citing Re Middle Harbour Investments Ltd (in liq) (unreported, Court of Appeal NSW, 15 December 1976); Flight Centre at [9(b)]; Wooldridge v Australian Securities and Investments Commission [2015] FCA 349; (2015) 106 ASCR 551 (Wooldridge) at [11]; Urban Alley Brewery Pty Ltd v La Sirène Pty Ltd (No 2) [2020] FCA 351 at [48], [51]. 27 See also Dyer v Chrysanthou (No 4) [2022] FCA 51 at [9]-[10] where Wigney J adopted the statement of legal principles of Abrahams J in Viagogo. 28 In relation to whether there is an arguable point on the proposed appeal against the primary decision, supporting interim restraint orders, it is my view that there is not. 29 In ground of appeal 1 Ms Storry contends that the primary Judge erred in finding that she had exhausted her rights of appeal in respect of the debt, and that his Honour 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 creditor'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 creditor 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 debtor. 31 His Honour noted at [10] that the relevant act of bankruptcy of Ms Storry occurred on 1 November 2021, being the date prior to which Ms Storry had failed to pay the judgment sum to RACQ after service upon her of the bankruptcy notice, and at [7] that the creditor's petition was personally served on Ms Storry on 29 January 2022. At [11] his Honour stated his satisfaction that the judgment debt remained unpaid. 32 The submissions of Ms Storry at the hearing before me yesterday did not cavil with these findings. 33 To that extent it is difficult to see how the primary Judge erred, when his Honour was simply applying the provisions of the Bankruptcy Act to the respondent's sequestration application. 34 However Ms Storry 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 Acting Magistrate Smith which Ms Storry sought to appeal to the District Court of Queensland. 35 At the hearing yesterday Ms Storry did not take the court to any notice of appeal to the District Court against the decision of Acting Magistrate Smith. The only evidence that this is the intention of Ms Storry is her evidence from the Bar table. 36 In my view, however, Ms Storry's prospects of successfully appealing the decision of Acting Magistrate Smith (thus seeking to establish error on the part of the primary Judge in the present proceedings) are practically very poor. 37 The judgment debt the subject of the decision of Acting Magistrate Smith 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 Storry made numerous submissions which I understood went to the importance of her proposed appeal from the decision of Acting Magistrate Smith. 39 Ms Storry 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 Storry that an error has been made by the primary Judge in respect of the application of s 60 (4) of the Bankruptcy Act to her case. Insofar as I understand this submission, Ms Storry 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) The Court 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 debtor under any law relating to the imprisonment of fraudulent debtors and, in a case where the debtor is imprisoned or otherwise held in custody under such a law, discharge the debtor 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 debtor: (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 debtor 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 debtor out of custody. (2) An action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, 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 bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt in respect of: (a) any personal injury or wrong done to the bankrupt, his or her spouse or de facto partner or a member of his or her family; or (b) the death of his or her spouse or de facto partner or of a member of his or her family. 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 bankrupt prior to bankruptcy. I understand that Ms Storry asserts that she may continue to prosecute appeals in respect of Magistrates Court decisions adverse to her (presumably in this case, the decisions of Magistrate Coates and Acting Magistrate Smith), in particular in respect of her criminal conviction and the judgment debt. 43 I am unable to identify how s 60 (4) assists Ms Storry in the present proceedings. It is not apparent that this section was in issue before the primary Judge in determining whether to make the sequestration order. More relevantly none of Ms Storry's litigation antecedent to the present proceedings appeared to concern any personal injury or wrong done to Ms Storry, 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 Dixon J in Cox v Journeaux (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 bankrupt in respect of his mind, body or character and without reference to his rights of property (Wilson v United Counties Bank Ltd (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 Storry may have in relation to it, could not give rise to a "personal injury or wrong" to Ms Storry, 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 Storry also submitted that the primary Judge erred in finding that she had not filed any material in the proceedings before his Honour, when she submitted she plainly did. I note the affidavit dated 14 March 2022, filed by Ms Storry in the proceedings before the primary 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 his Honour's reasons where the primary Judge noted the affidavit there had been admitted into evidence, but was of no obvious significance to those proceedings. 47 Ms Storry's affidavit dated 14 March 2022 annexed material described in the affidavit as: 1. The decision of Acting Magistrate Turra delivered on 7 December 2022; 2. Correspondence of Acting Magistrate Magistrate Turra denying the decision to be handed to the applicant. 3. Acting Magistrate Turra'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 SLF Lawyers. 6. District Court of Appeal Application. 7. Hearing transcript of Acting Magistrate Smith with no service of material to the applicant. No adjournment was provided. 8. Transcript of stay hearing to Justice Fraser, the costs told to his honour was for a 3 day trial when really 1.2 days and a judgment. 9. The costs of the car was turned down by SLF lawyers prior to trial. 10. High Court application for the Office of Fair trading. 48 It is unclear to me how the observation of his Honour, 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 his Honour Ms Storry 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 Acting Magistrate Smith or Acting Magistrate Turra would be subject to the Uniform Civil Procedure Rules 1999 (Qld) (Wynch v Ketchell [2001] QCA 391). Under those rules Ms Storry 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 primary Judge has no prospect of success. 52 In grounds of appeal 2 and 3 against the decision of the primary Judge, Ms Storry claims error on the part of his Honour in respect of costs ordered by Acting Magistrate Smith on 4 December 2020. 53 In respect of ground of appeal 2, Ms Storry 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 lawyers, presumably being lawyers of the respondent, and presumably in respect of the proceedings before Acting Magistrate Smith (although this is unclear). 54 As the High Court explained in Ramsay Health Care Australia Pty Ltd v Compton [2017] HCA 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 debtor, is whether there is a debt. The relevant debt for the purposes of the proceedings before his Honour was that following the order of Acting Magistrate Smith, namely $13,396.06 plus interests, costs and witness expenses. 55 In this ground of appeal, Ms Storry essentially claims error of the primary Judge in failing go behind the judgment of the Magistrates Court awarding costs to the respondent. In Ramsay 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 debtor in favour of a creditor obtained after a trial is, generally speaking, a reliable indication of the true state of indebtedness as between creditor and debtor. 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 Bankruptcy Court 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 Storry 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 Colvin J in Kitay, in the matter of Frigger (No 2) [2018] FCA 1032, where his Honour 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 Acting Magistrate Smith it is unclear on the materials whether the assessment of costs followed taxation. However, costs were ordered by the Acting Magistrate 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 primary Judge should have gone behind the decision of Acting Magistrate Smith. 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 Gageler J in Obeid v The Queen [2016] HCA 9 at [14], and Buchanan and Rangiah JJ in National Road Transport Association Ltd 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 Storry 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 primary Judge or any other decision made in the course of this litigation. 65 Ms Storry submits that she holds a real estate agent's licence, and essentially she will lose that licence if she is a bankrupt. While this outcome is plainly prejudicial to Ms Storry, 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 Storry has been unsuccessful in her applications. In the words of Keane JA (as his Honour then was) in Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [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 primary Judge. I certify that the preceding sixty-six (66) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Collier. Associate: Dated: 7 April 2022