SAYER v MURRAYFIELD NOMINESS PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY JA 12 December 1994 [1994] NSWCA 277 Mahoney JA This is an application which comes before the court in difficult circumstances. There has been defalcation by a solicitor, described as Jack Diamond, in amounts which I am told will exceed $10 million. A receiver has been appointed of his practice and moneys have been seized. The present application concerns moneys that were the subject of orders made by Allen J in an application that was dealt with by him. Putting the matter very broadly and, therefore, to an extent inaccurately, it appears that an account of a company, Milonia Pty Ltd, was used by Mr Diamond, or is claimed to have been used by him, as an account into which moneys received from others for investment were paid. Those moneys were, at least as to some part of them, used for purposes for which they were never given to him to be used. In the case here in question sums of money were received by him, ie, by the company Milonia Pty Ltd, from a trustee company, Murrayfield Nominees Pty Ltd, the moneys having been derived from a number of the persons referred to as second opponents in the proceedings. When the receiver was appointed, those moneys were recovered, and they were dealt with by the receiver by being paid into a particular bank account. Litigation was had before Allen J in respect of the moneys. As a result of that litigation his Honour made orders (I stress I put the matters generally) declaring that those moneys were moneys as to which Murrayfield Nominees Pty Ltd and the opponents to whom I have referred had proprietary claims. These claims were claims having priority over the persons who in the ordinary course would have claims to moneys misued by Mr Diamond through Milonia Pty Ltd. Miss Sayer desires to contest the accuracy of his Honour's findings and of the orders which he has made upon the basis of them. Ordinarily where a substantial point is to be argued, as to which there is a reasonable chance of success, the court is disposed in the exercise of its discretion to grant a stay of proceedings. It will do this in cases where if a stay is not granted the purpose of the appeal may be defeated. I put the matter generally and without the qualifications necessary to a detailed statement of the position. In the present case Mr Allsop, for the opponents, has submitted that his Honour's decision in regard to these moneys is inarguably correct and that there really is no substantial matter to be argued. I have wavered in the course of argument between the contentions of the parties but in the end I am of the opinion that it is proper to grant some form of stay. Putting the matter generally - there are some exceptions, some of which were referred to in argument - there would appear to be no hardship placed upon the parties if the moneys are not immediately paid to them. The money is safe and interest is being obtained. If particular exigencies arise in respect of particular opponents, separate applications may be made. I do not invite such applications but I note the possibility. 2 UNREPORTED JUDGMENTS In the circumstances (and, as I have said, notwithstanding that my mind has wavered in the course of the matter) I do not think that this is a case in which a stay should be refused. More accurately I shall, in the exercise of the court's discretion, grant a stay, until the hearing of the appeal or further order, against the execution of the judge's orders. Application has been made also in the Notice of Motion for an order that the proceedings be expedited. Obviously it would be in the interest of all parties if an order for expedition could be given and ordinarily I would be disposed to make such an order. But the state of the court's list is such that I do not think an order should be made by me at this stage. Arrangements are being made next year in an endeavour to reduce the burden of the court's list and ultimately to secure an earlier hearing of matters than might otherwise be obtained. I would not wish to interfere with the arrangements which are proposed in that regard. However, I think this is a matter which, all other things being equal, ought to be determined as soon as it is possible to do so. Having regard to the rights of other parties, I will refuse to make an order for expedition at this stage but I will direct that the matter be referred to the judge in chambers who deals with applications for expedition to consider whether, each of the parties being in support of the application for expedition, it is possible to find some day on which the matter can be heard. The appeal papers have not yet, of course, been prepared. It may be that immediately they have been prepared the matter can then be referred to the chambers judge to consider the position. It may be the matter can be dealt with in fairly short order. If that is so and if the parties were content to accept a hearing on very short notice, it may be possible for the matter to be disposed of at an earlier date than would normally be expected. However, these are matters which will have to be dealt with by the chamber judge. The orders I make are: the execution of the orders of Allen J made on 28 November 1994 be stayed pending the final determination of these proceedings or further order. I reserve to the court dealing with the appeal the determination of the costs of this application.