STEPHEN MICHAEL LARKIN v MILCHAS INVESTMENTS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER J 13 June 1989 [1989] NSWCA 130 Meagher J In this matter the claimant, Dr Stephen Michael Larkin, seeks various orders staying a judgment which Young J gave on 8 June 1989. The dispute between the parties is a vendor and purchaser dispute, Dr Larkin claiming to be the purchaser (although that seems to be in some slight doubt), the vendor being Milchas Investments Pty Limited, the opponent. His Honour Young J found against Dr Larkin, who in those proceedings was the cross-claimant. The case Dr Larikin sought to make before his Honour was based (1) on contract, although Mr Coles, his counsel, has told me this morning that that was not considered the primary case of the purchaser; (2) on estoppel and Trade Practices Act. There is a caveat on the property lodged by Dr Larkin and his Honour ordered that the caveat be removed. The property in question is listed for auction tomorrow 14 June. As Mr Grieve, senior counsel for the opponent, has pointed out to me, while in form this application is an application for stay, in substance it is really an application for an injunction to preserve Dr Larkin's position until the hearing of the appeal. I agree with that submission. That raises the question of whether there is an arguable point. I shall not repeat the facts which are in evidence or any of the matters put to me this morning. Suffice it to say that whilst the allegation that there was a contract between the parties is a very bold submission, it is not quite so bold as to justify the description of being frivolous or obviously false. I am therefore against the submissions of Mr Grieve on that point. Likewise, the estoppel point, while it seems to me to be exceedingly doubtful, is perhaps arguable, particularly in light of the extended area for the operation of the estoppel laid down by the High Court in Waltons Stores (Interstate) Ltd v Maher 164 CLR 387. Oh the third point (the Trade Practices point) I am unable to see any arguable point for that submission taken in isolation. In other words, I cannot see how it can conceivably be argued, if Dr Larikin lost both the contract and the estoppel point, how a misrepresentation would really generate a right to specific performance of a contract which did not exist. I do not see how on that basis of the Trade Practices Act it could justify the retention of the caveat. However, the upshot of all of that is at least in the first and second causes of action which I have described I do think the appellant has an arguable point. Perhaps barely an arguable point but nonetheless an arguable point. That brings me to the question of balance of convenience. There are a large number of factors going each way and these have been put to me very fairly and very lucidly by both counsel involved Mr Coles on behalf of Dr Larkin and Mr Grieve on behalf of Milchas Investments Pty Limited. I shall not repeat each of the factors which those counsel drew to my attention and to which I am much indebted. 2 UNREPORTED JUDGMENTS However, on balance, I am of the view that the balance of convenience favours Milchas Investments, in particular because it could mean that any postponement of tomorrow's auction would necessarily involve the waste of some $56,000. Despite what has been put to me on behalf of Dr Larkin, it would seem to me that the existence of the caveat on the property at the auction must necessarily have a depreciatory effect. Thirdly, there is the overwhelming factor that Dr Larkin is presently free to bid at the auction. If Dr Larkin's case were that should the bid exceed $10.2 million he has not the resources to go beyond that point, then he is also demonstrating that he cannot give an appropriate undertaking as to damages. If he has resources to go beyond that point and does so, it is difficult to see how he could suffer much harm, even if his case is correct. For those reasons, I decline to make any of the stay orders sought. However, Dr Larikin has also asked for expedition and, in my view he has mad out a case for that expedition. It may well be that when the expedited hearing is listed all matters now agitated will still be alive. One simply does not know. Certainly some of them will be. The orders of the Court will therefore be: The application in paragraph 2 of the notice of motion is dismissed; The appeal to be expedited, to be heard by the Court on 27 June 1989; I dispense with the normal rules for two appeal books. The parties can prepare a file of the relevant documents; The claimant to pay the opponent's costs of the motion.