MAILMAN v CHALLENGE BANK LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL MAHONEY JA 11 November 1991 [1991] NSWCA 180 Mahoney JA. In this matter an application was made for a stay of execution upon a judgment. The judgment was for a substantial amount. In due course the Court made orders granting a conditional stay. I am informed that the orders were made on | July 1991 and a copy of the short minutes of order have been handed to me by counsel. The stay provided: That execution on and all proceedings against the appellants under the judgment entered herein on 31 May 1991 be stayed pending hearing of the appeal herein and judgment of the Court of Appeal thereon provided the appellants comply with the conditions specified in paragraph 2 hereof. Paragraph 2 of the short minutes of order so far as it is now relevant provided: 1. That the conditions to be complied with by the appellants are as follows: (c) Within fourteen (14 days) after the appellants and the respondent agree upon the form of the documents necessary to secure the said judgment debt over the subject assets (or after the form of those documents has been settled by the Registrar pursuant to paragraph (d)) the appellants must deliver to therespondent's solicitors each such document in the form agreed, duly executed by the appellants, stamped and otherwise in registrable form together with: (i) (ii) the Certificate of Title to each of the subject assets or where such Certificate of Title is not under the control of the appellants or respondent evidence of its production to the Land Titles Office to permit registration of the mortgage granted to the respondent; and sufficient moneys to cover the payment of all necessary registration fees in connection with those documents. ' It is common ground that the parties agreed upon the form of the documents or otherwise they were settled and the Court has been informed that agreement took place not later than 24 July 1991, so that the period of fourteen days specified in cl (2)(c) of the order expired not later than 7 August 1991. The documents were executed and lodged with the Commissioner of Stamp Duties but they have not been stamped and, therefore, have not been handed to the respondent's solicitors in terms of cl 2(c). The material which has been placed before the Court indicates that the delay has taken place because the Commissioner has made an assessment or a_ provisional assessment of the amount of duty payable in an amount of the order of $39,000 or thereabouts. The opponents to the present application have contended that that assessment is wrong. I think JOBNAME: No Job Name PAGE: 2 SESS: 1 OUTPUT: Mon Feb 25 17:55:46 2008 /reports/caseml]/case/urj/9 103678 UNREPORTED JUDGMENTS I understand Mr Libling's submissions to be that, in fact, more recently the Commissioner has indicatedthat an assessment in an amount of $30 or thereabouts may be acceptable. The matter remains with the Commissioner of Stamp Duties. Mr Libling has informed the Court from the Bar table, although the matter does not appear in evidence, that steps have been taken by those instructing him to attempt to bring the matter to a head by telephone calls to the Commissioner but no result has eventuated from this. The result, therefore, is in my opinion that the proviso to which the stay of execution was subject has not been satisfied. It is not, I think, contested but that in literal terms the provisions of cl 2(c) of the short minutes of order have not been satisfied. The result of that is, in my opinion, that the stay is no longer operative. Mr Libling has argued that, having regard to the terms of the document and to the fact that the stamping of the document is not something completely within his client's power, the stay should not be construed in this way. The submission is, as I understand the effect of it, that because the stamping is not completely within his client's power the stay should continue and that the proviso does not mean that on noncompliance with it the stay ceases to have effect. Having regard to the precise terms of the documents and to the circumstances of this case, I do not so construe the document. I think the effect of it is that the arrangements for stamping were matters for the opponents and that it was for them to ensure that the stamping would take place within the appropriate dates. I am conscious of the fact that the amount involved is substantial and that the proceedings have taken place against the background (which, of course, affects every case) of the possibility of a party going into bankruptcy or liquidation and of prejudice resulting from a delay in the registration of the relevant securities. I have enquired whether it is possible for a caveat to be lodged by the bank to provide for some degree of protection of its position. I have been informed by Mr Coles from the Bar table that, in fact, this is not possible because caveats are required to be marked unless and until the Commissioner is satisfied that the appropriate stamp duty on the documents in question has been paid. I take this to be the effect of what has been placed before me. But however that be, the conditions of the stay not being complied with, it no longer operates. The question, therefore, is what is to be done on the present application. The application made by the claimant, the bank, is in terms that an order be made removing the stay of execution ordered on | July. Mr Coles has rightly pointed out that it may be that the order is not necessary and that the proper order is that, the stay having ceased to have effect, the application be dismissed. His client has quite properly brought the application to have the matter determined. URJ MAILMAN v CHALLENGE BANK LIMITED (Mahoney JA) 3 Mr Libling has submitted that, if the position be that the stay is no longer operative, his client should have a further stay on appropriate conditions. I have considered whether it would be appropriate without formalities to dealwith such an application. But, there being no formal application before the Court, I do not think that the Court should enter upon such a matter. It would be open to Mr Libling on short notice, if the evidence justified it, to make an appropriate application and the Court could then consider the matter. The parties have informed the Court that the hearing of the appeal is listed on 21 November 1991. I do not know whether, in the circumstances, the bank will or can proceed effectively to execute upon the judgment in the meantime. That is a matter on which I express no opinion. It may be that a convenient course to follow, in order to maintain the position before the Court, would be for the present application, rather than being dismissed, to be stood over to the date fixed for the hearing of the appeal. The parties could then do whatever was necessary in regard to the stay. I am not sure whether there will be any utility in so doing. Prima facie the proper order is that the application be dismissed and that an appropriate order be made as to the costs. But if the parties think there will be some convenience in standing over the motion to the date of the hearing I will consider an application to that effect. COLES: I make no such application. I am content for the order your Honour proposes and I seek costs on the application. LIBLING: I seek to follow the suggestion made by your Honour and that would give us an opportunity to put on further affidavits of anything we achieve with the Stamp Duties Office. Orders accordingly.