MAWBEY v JANNINE PTY LTD (No 2) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P 24 April 1990, 24 April 1990 [1990] NSWCA 121 PRACTICE and PROCEDURE — Court of Appeal — proposed application for special leave to appeal to High Court — proper approach to preservation of status quo pending — provision of stay or injunction or equivalent relief for that purpose — motion to extend caveats to protect claimant's alleged interest in land — Hodgson J declines to do so on the basis of balance of convenience — Court of Appeal dismisses summons for leave to appeal applying to Svanosio v McNamara and Another (1956) 96 CLR 186 — evidence of foreshadowed notice to complete by later purchase of property if caveats are maintained — held: The caveats should be extended for a short time until the claimants can bring the matter before the High Court to consider the application for special leave. Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (1986) 1 ALJR 102, 107; John Fairfax and Sons Ltd v Kelly [No 2] (1987) 8 NSWLR 510; Sibuse Pty Ltd v Shaw [No 2] (1988) 13 NSWLR 125 referred to and applied. Kirby P This morning the Court determined a summons for a leave for appeal brought by Ronald Lindsay Mawbey and Others from a judgment of Hodgson J given on 10 April 1990. The summons had been part-heard from yesterday. It was then adjourned in order to permit the claimants to provide the Court with supplementary written and oral submissions on a matter which had been raised in the course of argument before the Court. The Court referred counsel then appearing for the claimants to the decision of the High Court in Svanosio v McNamara and Another (1956) 96 CLR 186. It appeared to the Court that the holding in, or the fundamental reasoning of, that decision stood in the way of the success of the claimants in the application in this Court for leave to appeal. The written submissions and additional oral submissions were considered by the Court this morning. The summons was dismissed. As appears in the transcript of the Court's observations in dismissing the summons, the members of the Court variously expressed the opinion that, at the then state of the argument, they were not inclined to favour the reasons given by Hodgson J for declining the extension of the caveat sought. However, they were minded to refuse leave to appeal having regard principally to the opinions expressed by the High Court in Svanosio. Reference was also made by the Court to later observations of the High Court about Svanosio in Taylor and Others v Johnson (1982) 151 CLR 422 at 431. However, the Court was equally of the view that those observations did not alter the principles or holding stated in Svanosio. For these reasons the Court declined the application by the claimants for leave to appeal. The Court was content to allow the caveats, previously extended by an earlier order, to expire in accordance with that order at midnight. The claimants now wish to test the application of Svanosio to the facts of this case. They must do so in the High Court. They must seek special leave to appeal to that Court. Counsel for the claimants indicates that it is their intention, without delay, to move the High Court for special leave. I have been informed that the next day on which special leave applications will be heard by the High Court is 2 UNREPORTED JUDGMENTS Friday, 11 May 1990. However, according to the information available to counsel for the claimants, the list of the High Court for that day is closed. The next succeeding list will not be until August 1990, unless the High Court arranges a supplementary list in June 1990. Before the Court on the leave summons was an affidavit of Mr Ross Noel Spanswick of 23 April 1990. To this affidavit was annexed correspondence in respect of the property - the subject of the litigation - from the solicitors for another party which is in the process of purchasing the property from the opponent. Without objection that affidavit and its annexures have been referred to in these proceedings. The correspondence warns the solicitors for the opponent that unless the caveats - the subject of the litigation - lapse as a result of the summons proceedings in this Court on 24 April 1990, they "will immediately issue a fourteen-day notice to complete". By reason of the proceedings before the Court yesterday, and the need for further submissions, the Court adjourned the proceedings until today. Upon the usual undertakings as to damages being given to the Court by the claimants, the Court extended the order made by Hodgson J so that the caveats would remain in force until midnight tonight. The claimants now ask for a further extension of that order until the application for special leave can be heard by the High Court of Australia. They proffer to the Court the same undertakings as to damages which were offered yesterday by their counsel. They say that they are entitled to test the matter which was raised by the Court in the High Court. There is no doubt that the issue raised is one of possible interest and importance. Whether it is one for special leave is a matter for the High Court of Australia itself to decide. I am dealing with the application as a matter of urgency in advance of the filing of a formal motion and pursuant to the powers conferred on me by s46 of the Supreme Court Act 1970. In earlier times, this Court would rarely, if ever, grant a stay or other relief in support of a projected application for special leave to appeal from one of its judgments or orders to the High Court. However, following the remarks of Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 61 ALJR 102 at 107, the Court in John Fairfax and Sons Ltd v Kelly [No 2] (1987) 8 NSWLR 510, expressed the opinion that, upon an application for special leave to appeal for the High Court being signified, it would normally grant a stay of twenty-one days to permit such an application to be made. By analogy, where the proposed application was for special leave to appeal from a decision dismissing a claim, the Court would consider the provision of positive relief where this was designed to preserve the status quo for the parties pending the decision of the High Court disposing of the special leave application. The decision in Kelly [No 2] has been qualified or modified by several later decisions such as those in Sibuse Pty Ltd v Shaw [No 2], (1988) 13 NSWLR 125; Director of Public Prosecutions v Saffron, Court of Appeal, unreported, 30 May 1989; (1989) NSW JB 130. Following this line of authority in the Court, it seems to me that relief should be given to the claimants to permit them effectively to test the decision of this Court and their propositions in the High Court of Australia. However, having regard to the notice which has been given to the solicitors for the opponent, the balance of convenience requires that that facility should not be prolonged. It should certainly not be prolonged by order of this Court until August 1990. In my view, it should be extended only until 11 May 1990. That will permit the claimant either before the Full Court of the High Court of Australia, or before a single URJ MAWBEY v JANNINE PTY LTD (No 2) (Kirby P) 3 Justice, to seek any extension of the operation of the orders made by this Court to date. That application will then be determined by a Justice of the High Court of Australia or by that Court in the light of the interests of the parties then obtaining, a consideration of the merits of the matter, the convenience of the parties, and the prospects which the claimants appear to have of securing special leave to appeal. The orders which I will make, for those reasons, are: 1. Order pursuant to s84K of the Real Property Act 1900 that the operation of caveats Y783808 and Y783809 be extended until Friday, 11 May 1990, at midnight; and 2. Order that the costs of this motion be costs in the proceedings in the Court of Appeal. I note the undertaking given to the Court on behalf of the claimants by their counsel in the usual terms as to any damage which may be suffered by the opponent as a consequence of this extension of the operation of the caveats. I also note the undertaking given to the Court by counsel for the claimants that a motion, claiming the relief just afforded to them, will be filed on their behalf in the Court of Appeal registry by Friday, 27 April 1990 at 4.00 p.m. MR LEVER: Your Honour, would you clarify the order in relation to costs? You said, I think, that the costs of this motion would be the costs of the Court of Appeal. Counsel for Claimant: PLG BRERETON Solicitors for Claimant: FLASHMAN AND COMPANY Counsel for Opponent: FG LEVER Solicitors for Opponent: MARSHALL MARKS KENNEDY