ST CLAIR v PETRICEVIC SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE JA 22 June 1988 [1988] NSWCA 141 Clarke JA The claimant is the appellant who has appealed from a decision of Waddell J handed down on 6 May 1988. She made two applications to this Court. In the first place she sought an expedited hearing of the appeal and in the second place she sought a stay of execution of the order made by his Honour in which he decreed specific performance of a contract entered into between the parties on 24 April 1987. I have already dealt with the application for an expedited hearing and have acceded to it. The form of expedition which I granted makes it likely that the hearing of the appeal will proceed in mid to late August. Accordingly, when I come to consider the question of a stay I am looking at a period of about two months, although if I were to grant a stay until the termination of the appeal the period could conceivably be longer. The contract of which specific performance was decreed was a contract whereby the appellant agreed to sell her home to the respondent for $1,250,000. She declined to proceed with the sale and accordingly proceedings were instituted by the respondents on 9 June 1987. Her response was to file a defence which raised a number of answers to the claimant. It is unnecessary to mention other than her allegation that the contract should be set aside under the Contract Review Act. In support of that defence (and indeed the other defences) she sought to establish that at the time of the contract she was under considerable stress and agreed to enter into the contract only in response to a threat which had been made through the medium of her agent Mr Smith. Lest it be unclear, the threat was said to have come from the first respondent. The factors which led to her stress included the collapse of her business, injuries to relatives in an accident and, most importantly, her discovery that she was suffering from a rare form of cancer and later treatment for that condition. The trial Judge accepted that a threat of the type alleged had been made and inferred that the threat was made at the instance of the respondent. Nonetheless, he was not persuaded that the threat, whether viewed in abstract or in the light of the stress under which the appellant claimed she was, justified the conclusion that the threat had induced her to enter into the contract and concluded that there was no reason why specific performance should not be decreed. The appellant's counsel has pointed to a number of factors which indicate that there are errors of a prima facie nature in the judgment under appeal. I do not propose to advert to all of those factors. I will mention only one. Counsel submitted that the trial Judge addressed the question whether an individual aspect such as the appellant's stress led to the conclusion that the contract was unfair and having decided that that matter did not lead to the conclusion put it right out of his mind. In this way, it was said, he failed to have regard to the totality of the factors which would have led him to the conclusion, 2 UNREPORTED JUDGMENTS which was open on the evidence, that this contract was unfair. It is quite inappropriate for me to pass upon the correctness or otherwise of the submission. Indeed, I have heard only very short submissions on this aspect of the application. I have no view as to whether there has been demonstrated any error in the judgment or not. The respondents' counsel - quite properly, I might say - did not suggest that the appeal was hopeless or that there were no arguable grounds. In these circumstances, I believe that I ought to approach this application upon the basis that there are available to the appellant a number of points of alleged error. They do not seem to me as a result of my fairly superficial examination of the judgment to be fatuous points. They seem to be arguable. Counsel for the respondents submits that his clients are entitled to the fruits of the judgment and that no reason has been shown why any stay should be granted. I would accept that prima facie the respondents are entitled to the fruits of their judgment unless in all the circumstances I come to the conclusion that it is appropriate in this case to stay execution on the judgment. It is no longer necessary, as once was thought, to establish special or exceptional circumstances in order to obtain a stay. It is, as this Court pointed out in Alexander v Cambridge Credit Corporation sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of discretion in his favour. The appellant relies on the fact that if a stay for the relatively short period contemplated is not ordered the respondents will be at liberty to demolish the building on the land, to sell the property, as the first respondent has indicated he wishes to, or perhaps to take other steps which could greatly prejudice the appellant if she is successful in the appeal. On the other hand, the respondents' solicitor has pointed out that in July or August of last year the respondents paid a little less than $1.4 million to purchase the outstanding mortgages on the property. There is no evidence as to why they did this but I would assume that it was the only means available by which to stay the hands of the mortgagee. They say that having entered into this mortgage they are obliged to pay a sum of interest, and indeed have paid over $180,000 to date. They wish to be relieved of the obligation to continue to pay that interest. In addition, they wish to sell the property and to do so in a market which presently is of an advantageous nature. Finally, the solicitor for the respondents has pointed out that if in fact his clients had not purchased the property or had not pressed the claim for specific performance then it would have been inevitable that the mortgagees would have sold the property. In these circumstances, there would have been a forced sale and it is likely that the appellant would have received even less than the amount payable under their contract. He proceeded to argue that if I grant the stay I am in effect giving the appellant an advantage which she would not have enjoyed if the proceedings had not gone forward. It seems to me that, in the light of the suggested errors and the particular circumstances of the appellant, a broad case for a stay has been made out and that it is necessary for me to carry out a balancing exercise in order to exercise properly the discretion that is ultimately vested in me. In saying that, I am seeking to indicate my approach to the present problem. Having carried out that balancing exercise, I have decided that it is in accord with the interests of justice to grant a stay until the termination of the hearing. The main factors which influenced me in that decision are these. Firstly, the period of time is not lengthy. I am looking at two months only. Secondly, the URJ ST CLAIR v PETRICEVIC (Clarke JA) 3 liability to incur interest was a matter which arose because of a decision made by the respondents which was not forced upon them in any way by the appellant. Thirdly, that if ultimately they are successful in the appeal and proceed to sell the property the most they will have lost is a sale in an advantageous market. This obviously involves a degree of speculation because it may well be that they sell in an even better market. Furthermore, the evidence as to the price they will receive on a sale would tend to indicate that the sale proceeds will be more than enough to enable them to effect a discharge of all mortgages and to leave them with a comfortable balance. On the other hand, this was the appellant's family home. Her health is precarious, to say the least, and the home represents the only asset which could be left to the appellant's teenage daughter. If anything occurred during the two months which operated to prejudice the appellant's desires with relation to the property it would be unfortunate to say the least. It seems to me that, bearing those factors in mind, I should pay greater weight to the fact that the house was the appellant's family home and represents her only substantial asset. Accordingly, the order I propose to make is to stay execution on the orders of Waddell J until the termination of the hearing of the appeal. In order to make it quite clear, I intend the stay to continue only so long as the argument on the appeal continues and not to flow on during any period whilst judgment may be reserved. There is thus cast on the appellant an onus to seek an extension of the stay at the end of the hearing of the argument in the case. I dispense with the normal requirement that appeal books be prepared by the Court, upon the basis that the appellant will prepare appeal books in an appropriate form. I order written submissions. Costs to be respondents' costs in the appeal.