IMMER (NO 145) PTY LTD v THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (NSW) SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY JA 24 February 1992 [1992] NSWCA 112 Mahoney JA This is an application for the stay of the execution of a judgment of this Court or, more accurately, for a stay of the effect of it pending the determination of an application to the High Court of Australia for special leave to appeal against that judgment. The circumstances out of which the application arises are broadly these. The Uniting Church in Australia Property Trust, to which I shall refer as "the Church", and Immer (No 145) Pty Ltd, a company, entered into an agreement by deed dated 4 October 1988 for the Church to sell to the company (as it has been described) air space rights for a sum of $2,306,600. Disputes arose between the parties in relation to the transaction and the company took the view, I put the matter broadly, that it was not obliged to pursue the contract. Young J who heard the dispute between the parties originally appears to have supported the company's view. However, on appeal to this Court, his Honour's view did not find favour and the orders he made were set aside. In September last, this Court made an order declaring in substance that the contract contained in the deed subsisted and continued on foot and that it should be specifically performed. The matter was referred to the Master in Equity inter alia to fix a date, time and place at which the agreement was to be completed, and to do various other things. The company has sought leave to appeal to the High Court against this Court's order and I am informed by Mr Conti QC, for the company, that the hearing of that special leave application has been fixed for 10 April 1992. The matter has come to a head because the date fixed by the Master for completion is before 10 April 1992 and, therefore, it is not possible to determine prior to the date fixed for completion whether leave to appeal will be granted and, of course, whether the resulting appeal to the High Court will be successful. The present application is made by the company in effect to postpone the date for completion. Discussions took place between the parties previously in relation to the form of the application but the substance of it is, I think, that the company desires to postpone the completion until it knows what is the position in the High Court. Objection has been taken by the Church to such an order being made. Mr Douglas QC has referred me to material in the affidavit evidence before me which he submits suggests that the Church has borrowed an amount which, with interest, now aggregates $2.6 million and (I put the matter not in precise terms but in substance) that it would be appropriate that the Church have the amount of money payable under the contract in the interim. The substance of the position would be that if the company were required to complete in accordance with the terms of the contract and the date fixed by the Master, it would be required to pay over on that date the amount of $2 million and more which now is outstanding under the contract together with an amount 2 UNREPORTED JUDGMENTS of interest in respect of which an undertaking was, I am informed, given before the Master. If leave to appeal were granted, it may well be that the further execution of the matter would be postponed and, of course, if the appeal were upheld, it would be necessary to reverse the effect of any completion of the contract which might have been undertaken. In the interim nothing will be done in relation to the development contemplated by the contract. The position appears to be that the development has been suspended and that it is not anticipated that anything will be done pending the disposal of proceedings in the High Court. The question, therefore, is whether the court should make an order suspending the operation of the order of this Court requiring settlement of the contract. On the face of it there would appear to be a good deal of sense in postponing settlement of the matter at least until the special leave application is determined by the High Court on or about 10 April 1992. If leave to appeal were then granted, no doubt the parties would apply to that Court for such orders as they may be advised in relation to the completion or otherwise of the agreement. However, it has been submitted to me by Mr Douglas QC that the appropriate test for determining these matters which emerges from cases such as Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681 is that there must be extraordinary or exceptional circumstances, that a stay is an extraordinary measure or that there must be exceptional circumstances warranting the granting of a stay. I shall assume, without the benefit of argument from the company, that this is the appropriate test. The question, therefore, is whether this is a case which is, within the principles referred to in that decision and elsewhere, an appropriate case in which to grant a stay. I think the requirement that the contract be completed at the time specified by the Master or in any event before the date fixed for the determination of the special leave application would be apt to involve the parties in quite unnecessary procedures and expenditures. Moneys would have to be paid over, and if leave were granted, and the appeal succeeded, they would have to be repaid; rights would have to be granted and then if the appeal were successful would have to be put aside. It would appear to be inappropriate to require that the agreement be completed in the relevant circumstances. I think that the circumstances are such as would justify the test that has been referred to. I can see no particular point in requiring the settlement of the matter other than that the Church will receive payments of the money which, in due course, it might have to repay. It is not necessary to pursue all of the matters that have been put to me but, to put the matter in general terms, I cannot see any important purpose to be served other than in relation to the payment of the money to the Church; there would be apt to be a good deal of inconvenience and difficulty involved in requiring the completion of the matter at this stage. When I say requiring completion of the matter, I am conscious that as the law and the decisions of the court stand, the Church is entitled to have the matter completed. I use the phrase in the context of the circumstances as I have outlined them. Reference has been made to the question whether the company is in a position to complete and whether some security should be given to ensure completion if it fails in the proceedings in the High Court. The court has before it financial details in relation to the company and no cross-examination has been directed to the matter. It is not necessary to attempt to pursue an analysis of the company's financial position. I do not think that it has been suggested, at least I am not satisfied that the position is, otherwise than that the company would, if required UIRWIER (NO 145) PTY LTD v THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUSS (NSW) (Mahoney JA) to complete in due course, be in a position to complete. If the company should change its circumstances or something occur which would make its capacity to complete doubtful, then of course an appropriate application could be made based upon evidence to that effect. In all of the circumstances, I think it appropriate a stay should be granted. I do not think that it is necessary to provide security against the company's ability to complete the contract. I will make an appropriate order for the stay. The stay should operate until the disposal of the special leave application. Upon the disposal of that application, if leave be granted, then in the circumstances of this case application should be made to the High Court for any further stay. If leave is refused, then of course the stay will come to an end. Ihave used the term "stay" as a matter of convenience. My intention is that the effect of the order of this Court made in September last be suspended for the purposes to which I have referred. It will be necessary to draw up terms of the order. I do not think it is appropriate that I take up further time specifying them at the moment. I can refer the matter to the Registrar to draw up the terms of the order or the parties might be disposed, to save time, to agree amongst themselves what is the most convenient course. Perhaps the parties can agree upon the terms of the stay as I have described it. I order that the orders of the Court of Appeal be stayed on terms to be agreed or if not agreed within seven days to be settled by the Registrar. The costs of the application to abide the fate of the application for leave to appeal and, if leave be granted, the appeal in the High Court. Liberty to apply.