DALEY INVESTMENTS PTY LIMITED v MELACARE INDUSTRIES OF AUSTRALIA PTY LIMITED [1996] NSWCA 135

DALEY INVESTMENTS PTY LIMITED vy MELACARE INDUSTRIES OF AUSTRALIA PTY LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA 29 April 1996 [1996] NSWCA 135

EXPEDITION OF APPEAL — APPLICATION PREVIOUSLY DISMISSED — CHANGE IN CIRCUMSTANCES — DETERIORATION OF APPELLANT'S HEALTH — SALEABILITY OF PROPERTY

STAY OF COSTS ORDER — RECOVERABILITY OF AMOUNT ON APPEAL

Clarke JA. The appellant has brought two applications to the Court. The first is an application for expedition of the appeal and the second for a stay of so much of the trial judge's orders as requires the payment by the appellant of the respondent's costs of the trial. The applications are of types commonly found in this Court. Notwithstanding, I have been supplied with an enormous amount of evidence covering material, much of which has little, if any, relevance to the applications.

Because of the volume of material I informed the parties I would consider only those parts of the affidavits or other evidence to which my attention was drawn.

The appeal is, in many ways, an unusual one. The present situation in which the parties find themselves is extremely unfortunate. The respondent company in 1987 purchased the goodwill of a tea-tree plantation business conducted by Mr and Mrs Daley from the appellant for $6.1 million. Theconsideration was provided in shares. Therein started a sequence of events which found both parties locked in combat, a state in which they have been since at least 1993.

The actual decision of Hodgson J involved, as it transpired, a claim by the appellant that it had lawfully terminated an option granted to the respondent to purchase the property which the respondent already leased and on which the plantation business was conducted. The option and lease resulted, as I understand the chronological material before the Court, from attempts by both parties to resolve their differences, or the differences that then existed. Such attempts involved mediation in 1994 before Sir Laurence Street. Unfortunately on this occasion the mediation was not successful. The appellant lost its attempt to have the option declared to be lawfully terminated and it is from that decision that it has appealed.