CENEPRO PTY LTD v GLENN PEARSON AND ASSOCIATES PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COLE JA 5 May 1998 [1998] NSWCA 54 Cole JA An application has been made by way of notice of motion for a stay pending determination of the appeal. The appeal is against a decision of Mr Justice Bryson, delivered on 11 December 1996. His Honour was dealing with a claim by what I shall call the Pearson interests against what I shall call the Jamieson interests. The claim arose out of a deed dated 14 November 1991 made between Mr Jamieson and Mr Pearson, that deed being consequential upon arrangements between them relating to joint venture arrangements for property development. Pursuant to cl2 of that deed the Pearson interests claimed $380,000 and pursuant to cl3 they claimed $300,000. In respect of each of those claims there had been some offsetting payments so that the balance claimed was about $244,000 under cl2 and about $77,000 under cl3. The Pearson interests were successful before Mr Justice Bryson and together with interests the result was a judgment in favour of the Pearson interests for a sum slightly in excess of $500,000. Immediately after delivery of the judgment there were suggestions by the Jamieson interests that they would appeal and indeed that they would seek a stay. Nothing was done pursuant to that intimation and no application for a stay was made until the notice of motion of 22 April 1998. There seems little doubt that was generated by the fact that bankruptcy proceedings had been commenced reliant upon the judgment against Mr Jamieson. Senior Counsel for the applicant has indicated to the Court that his client is not in a position to offer security for any portion of the judgment, nor is he in a position to bring into Court any portion of the judgment. He has contended that there are reasonable grounds upon which the appellant can claim to have prospects of success. In case the matter proceeds I should not express too firm a view regarding the prospects of success. However, I have to say that I foresee significant difficulties in the appellant succeeding on any appeal. That is because the trial judge found against the applicant on the basis of credit, at least in part. Cl2 suggests that the indebtedness under it of $380,000 relates to some prior agreement. It uses the expression "as previously agreed". What constituted that previous agreement was the subject of competing evidence between Mr Jamieson and Mr Pearson and based in part and to a significant extent upon a finding of credit. That issue was determined in favour of Mr Pearson. Accordingly, it seems to me that it could not be said that the appellant's prospects of success are high. That is but one factor to be taken into account. Another is the failure to offer any form of security. A third is the circumstance that there has been very significant delay indeed in the brining of this application and a fourth is a feeling of disquiet which I have concerning the contention that if this stay is not granted the applicant may not have the resources to prosecute the appeal. It may be true 2 UNREPORTED JUDGMENTS that he personally does not have those resources but there is an affidavit which has been filed which relates to significant property dealings in relation to significant sums of money which appear to relate to property development activities carried on in the name of Mrs Jamieson. There is material before the Court which indicates, not that she is a property developer, but rather that her activities are more confirmed to home duties. A significant question could well arise concerning whether or not the activities of the property purchases and development and resale which have been conducted in the last couple of years in the name of Mrs Jamieson are in truth activities being conducted in the part of the applicant. The trial was lengthy. The issues contested at the trial were fully analysed by the trial judge. In my view the successful parts, that is the Pearson interests, are entitled to have the advantage of that judgment and to execute such rights as may flow from it. Accordingly, I dismiss the application with costs.