CUSTOM CREDIT CORPORATION LTD vy CENEPRO PTY LTD SUPREME COURT OF NEW SOUTH WALES — CouRT OF APPEAL CLARKE JA 21 December 1990 [1990] NSWCA 49 Clarke JA. This is an application by an unsuccessful defendant for a stay of execution on a judgment entered by Cole J on 14 December 1990, the terms of the judgment in what was a most complex case being as follows: (1) Judgment for the plaintiffs in the sum of $4,079,369.88. (2) Judgment for the defendant on the cross-claim in the sum of $3,164,050.58. (3) The defendant is to pay the plaintiffs' costs of the action and cross-claim. Without detailing them there were earlier statements by his Honour indicating he proposed to order a stay of the judgment on the cross-claim until payment of the moneys awarded to the plaintiffs in the action. The broad effect of his Honour's judgment was that the plaintiffs would be released from mortgages and guarantees and a debt to the defendant and would, in addition, receive a sum of money of around $900,000. The major thrust of the defendants" claim for a stay is that the real contracting party, which was the first plaintiff in the Court below, had no assets. On the contrary, it had liabilities totalling in excess of $600,000. Thus it was said that if the moneys were paid to the first plaintiff or the plaintiffs generally they would in all probability be lost to the defendant should it succeed in the appeal. The major response from the plaintiff was that it was simply not good enough to show that one of the respondents found entitled to the sum of about $900,000 would be unable to repay that amount if the defendant paid it over. It was necessary, according to this submission, for the applicant/defendant to go further and show that none of the successful plaintiffs have the funds to repay the amount which has been paid over in the event that the defendant succeeded in the appeal. This submission was coupled with two others. The first was that the evidence in the Court below demonstrated that in excess of $200,000 of the debt owed by the first plaintiff was owed to the third plaintiff in respect of architectural fees and if that was paid to the third defendant then, as had already been submitted, there is no reason to believe that he would not be able to repay at least that portion to the defendant. Secondly, the amount of $137,516 was owed by the first plaintiff to the Department of Lands being the purchase price of land which the first plaintiff had contracted to buy and which was intended to be used in the development which failed. Accordingly, so the submission went,if that sum was paid to the plaintiffs it would increase the assets of the plaintiffs and would not be dissipated. In my opinion this is a very finely balanced application. The basic principle is that in an application of this sort an order should be made which is fair to all parties. There is another principle that prima facie a judgment creditor is entitled to payment of the judgment debt and the applicant for a stay must demonstrate a case entitling it to a stay. In that respect it must show at least that it is in the interests of justice that an order be made. 2 UNREPORTED JUDGMENTS I am acutely aware of the strength of the submissions advanced by the successful plaintiffs. It seems to me that the submissions which have been made by Mr Hely have a great deal of force. On the other hand if a stay is not granted and the defendant is ultimately successful it faces a situation of recovering not only the judgment debt, which was the amount shown in the judgment on the cross-claim, but also the additional sum of $900,000-odd. I think in the circumstances that I should grant a stay but that I should do so on terms. Those terms will require payment to the successful plaintiffs of the amount of $137,516 upon the condition that that amount is paid to the Department of Lands to secure completion of the purchase of the block of land to which I earlier made reference. A second term will require that the defendant pay to the plaintiffs the sum of $100,000 to be applied in respect of the third plaintiff's architectural fees or part thereof. I am also disposed to make an order that as the defendant has sought the indulgence it should pay the costs of this application. Counsel for the plaintiffs also sought an order for expedition or, to put it more accurately, that I impose a term of any stay that the hearing of the appeal be expedited. There is some force in this submission but as I see it at present I am not disposed to grant expedition. There are a great number of cases awaiting hearing in the Court of Appeal list and it seems to me that if a party seeks expedition and thus will gain an advantage over a lot of other litigants it should make out a compelling case justifying the making of such an order. There is no evidence presently before me which would justify the granting of expedition and Iam not disposed to do so. I would add that there is no formal application before me although I do not regard that as a stumbling block to the imposition of a term in appropriate circumstances. I have indicated the nature of the orders I propose to make but in order to ensure that they appear in a form which is satisfactory to both parties I think I should stand the matter down now to enable the parties to confer on the form of those orders and when the conference has taken place and the parties have reached some form of agreement I will make the appropriate orders. (A short time later short minutes of order were handed up to his Honour.)I will make orders in accordance with the short minutes of order initialled by me and placed with the papers. STAY GRANTED ON TERMS Counsel for the claimant: J IRELAND Solicitors for the claimant: GADENS RIDGEWAY Counsel for the opponent: J KELLY Solicitors for the opponent: FREEHILL HOLLINGDALE and PAGE