COLLINGS CONSTRUCTION CO PTY LTD and ANOR v AUSTRALIAN COMPETITION & CONSUMER COMMISSION SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P 14 April 1997 [1997] NSWCA 69 Mason P Following a hearing that went for about 50 days Hunter J announced in December last that he was minded to make orders in favour of the Australian Competition and Consumer Commission against various companies and persons, two of whom were the claimants today, Collings Construction Co Pty Ltd and Wayne Collings. Formal orders were made on 7 February 1997. As against each of the claimants there was a finding that they were liable, pursuant to the Trade Practices Act, to pay to the Commission, on behalf of various persons (presumably consumers) listed in the order, the sum of $1.4,000,000. An affidavit was filed, sworn on 12 December by Mr Collings. Obviously that related to a stay application then being prosecuted before Hunter J. It was there said that: "The first defendant and I" namely Mr Collings, "intend to appeal from the decision and we have instructed our solicitors herein to file a notice of appeal within the period of time provided by the rules of this honourable Court." Although a notice of appeal was filed, it was not filed until 7 March and then it was a notice not disclosing any grounds. That certainly was the right of the appellants, but it is a matter that I think is relevant to be taken into account in the exercise of my discretion concerning the grant or refusal of a stay. For reasons given on 5 February 1997 in a document called "Supplementary Reasons for Judgment", Hunter J indicated why he was disposed to grant a limited conditional stay in favour of the Collings group, by which he meant Collings Construction Co Pty Ltd and Mr Collings. I will not set out his reasons on that matter, but I do note that his Honour expressed the opinion that an unconditional stay was not appropriate. His Honour was aware and acknowledged the fact that it was beyond the financial capacity of the Collings group to meet the judgment entered against them. However his Honour said that the evidence as to their liability was quite compelling. Nevertheless he was prepared to grant a conditional stay upon conditions, particularly a condition that $113,000 odd be paid to the plaintiff by 28 March 1997. This sum represented damages payable on account of seven named consumers with respect to particular sums. They totalled $70,081. The difference between that and $113,316 was the calculation of interest. I recognise that my jurisdiction is an original one and that it is not necessary for the claimants to establish special or exceptional circumstances. The relevant principles are set out in Alexander and Cambridge Credit Corporation Ltd, receivers appointed (1985) 2 NSWLR 685. However, it is incumbent upon the claimants to persuade me that a stay is appropriate in all of the circumstances and I am not persuaded. 2 UNREPORTED JUDGMENTS Ihave regard to the following in particular: First the view expressed by the trial judge who had a close familiarity with the case. I appreciate the matter has been argued in circumstances of some difficulty today and that I should not judge too harshly matters that were put or not put having regard to the limited time circumstances, but on the material that has been put before me I have seen nothing to persuade me that that assessment of Hunter J was inappropriate as regards the question of liability qua, at least, $70,000 plus interest. Secondly the claimants have had, I consider, a more than sufficient time to come up with the money, if it was capable of being obtained by some mortgage or other transaction relating to the asset referred to in the evidence. It is true that they have put on a valuation which suggests that the asset, being a partly completed house, is worth perhaps some hundreds of thousands of dollars. The fact is, however, that nobody apart, perhaps, from Mrs Collings, the mother of Mr Collings, has been prepared to advance money to enable the Damoclean sword of execution on the judgment that has been hanging around now in effect since December, to be removed. Thirdly I have regard to the fact that the claimants have not, to my mind, prosecuted their appeal rights with appropriate diligence. It must have been obvious that the opponent, having obtained a very large judgment which clearly could not be satisfied by the claimants, would be anxious to explore their capacity to repay at least some of the money which had been ordered to be due. That capacity is obviously frustrated, so long as liquidation or bankruptcy is kept in abeyance. I note that counsel for the opponent indicated that the primary concern of the opponent, in light of the evidence about assets, was to get control of the land, property upon which the partly completed house is erected. Fourthly I believe that to refuse a stay is the best way of giving effect to the mutual commercial interests of the parties. From the opponent's point of view it must be aware of the fact that if it presses too hard it may end up with nothing. To refuse a stay will not mean that the Collings group crashes overnight. Obviously they will be at peril of quite immediate adverse action, but they will retain the capacity to bargain, a capacity which I do not think has been explored to date sufficiently, through no fault perhaps of either party, but to bargain to see whether the plaintiff is willing to accept some security or, alternatively, to explore whether the Collings group is able to raise the money upon which the conditional stay has been granted. I recognise that the condition required the money to be produced by 28 March 1997 and it would require agreement or the imposition of a fresh conditional stay by a judge of this Court, as it were, to restore that condition, but reiterating what I said about the commercial interest of the opponent, one has a fair suspicion that if the money were there and if other deficits such as the apparent dilatoriness in prosecuting the appeal were overcome, then the stay might be restored by consent. But that would be a matter, in the first instance, for the parties to agree between themselves. I have not overlooked the evidence that Mrs Collings may be willing to advance money up to $151,000 to enable the house to be completed and then sold, but I am concerned that the timetable involved in that spans over a year, and that really this could have been done or at least steps along that way could have been put in train before now. I am also concerned that the conditions that appear at the moment to be attaching to that offer seem to be concerned with securing Mrs Collings' interests and, perhaps, preserving the house as an asset for the claimants should they be \WRQLLINGS CONSTRUCTION CO PTY LTD and ANOR v AUSTRALIAN COMPETITION & CONSUMER COMMISSION (Mason P) successful in the appeal. While that is their right, it does not give me much comfort if Mrs Collings has the capacity, alone of anyone in the market, to advance this money on terms that will restore the conditional stay, and if that is consented to or is ordered by the Court, then I do not see that the refusal of the stay prevents that being properly explored but I am not prepared to set aside the carefully worked out terms of Hunter J's conditional stay merely upon the basis of the evidence disclosed in Mr Collings' affidavit of 28 March 1997. Nor am I persuaded that the fact that some such arrangement was in contemplation some years ago at the time when a Mareva injunction was awarded has much bearing upon the present state of affairs. In referring to Hunter J's reasons I reiterate that I recognise that I have an original jurisdiction but, equally, think it appropriate that I can pay proper regard to the matter as it appeared to the judge who looked at it. For these reasons the motion for stay is refused with costs.