CHAN -v- BURROWES SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL STEIN JA 2 March 1998 [1998] NSWCA 56 Stein JA. This is an application for a stay pending an appeal by the appellant, Mr Augustine Chan, of orders made by Master Macready on 31 October 1997. The notice of motion was filed on 20 February this year. The orders made by the Master related to an adjustment of the parties" property interests under the De Facto Relationships Act whereby the Master ordered the defendant/appellant to pay the plaintiff/respondent the sum of $135,000. The Master made some consequential orders charging a property at Kyle Bay for payment of that sum of money, and a further order (No 3) that, in the event that the sum of money was not paid within two months, the Kyle Bay property be sold and out of the proceeds of sale the moneys awarded to be paid to the plaintiff, be paid. The application is to stay the order for the payment of $135,000 and if necessary, order (No 3) relating to the sale of the house in order to make the payment. It is for the party moving for a stay to satisfy the Court that a stay ought be granted. A number of reasons are relied on in support of the application. It is said — and this is particularly in relation to order (No 3) that involves the sale of the property — that if no stay is granted the appeal would be rendered nugatory. The second reason is that if themoneys, the subject of order (No 1), are paid, bearing in mind the respective means of the parties as they appear from the judgment, that those moneys, or all or part of them, may be irrecoverable in the event that the appeal is successful. Thirdly, it is submitted that there is no prejudice to the respondent if a stay is granted to the appellant since order (No 2), which is not sought to be stayed, charges the property at Kyle Bay with the respondent's interest. Next, it is submitted that the grounds in the notice of appeal are arguable. It is as well, given the opposition of the respondent, to examine the arguments made in support of the application. As to the first, it is not necessarily clear to me that if the money has to be paid — that is the $135,000 — the appeal would be rendered nugatory bearing in mind the Master's findings about the appellant's assets. It does not necessarily appear to follow, as night follows day, that for the $135,000 to be paid, it will be necessary to sell the Kyle Bay property. It may be possible that other assets would enable the appellant to pay the moneys, the subject to the judgment. As to the second submission, apart from the relevance of any findings by the Master as to the respondent's assets — and there are some relating to 1996 — there is no evidence adduced on the motion that any moneys paid may be irrecoverable from the respondent if the appeal is determined against her. It should also be acknowledged that, at the very least, one may assume if the appeal is wholly successful, that $20,000 would be made as an adjustment in the respondent's favour. 2 UNREPORTED JUDGMENTS It is correct to say that there is a charge on the property as security for the order for the payment of moneys. So, to that extent the respondent is safe pending the hearing of the disposition of an appeal. As to the question of the merits of an appeal, it is very difficult to make prognostications, even cursory ones. Nonetheless, I have perused the decision of the Master and been taken to some portions of it by counsel. Leaving aside ground of appeal No. 5, although I would not conclude that the appeal is unarguable it does not appear to be terribly strong. As far as order (No 5) is concerned, it seems conceded that there may have been an error by the Master but the question is whether or not that error led to any miscarriage of the discretion. It comes down again to the question of challenging a discretion, which is never an easy task, even under the De Facto Relationships Act. One thing is clear from the Master's decision — and this has already been referred to — is that the appellant seems to have at his disposal a reasonable array of assets, including a very sizeable equity in the Kyle Bay property. It seems to me that the appellant should not have a great deal of difficulty raising the money without having the property sold pursuant to order (No 3) of the Master. I am not persuaded that the application for a stay has been made out. In my opinion the stay should be refused with costs. The notice of motion for enforcement is referred back to Master Macready. Orders accordingly.