New South Wales Court of Appeal CITATION : WILCOX & ANOR v RICHARDSON & ANOR [1999] NSWCA 88 FILE NUMBER(S) : CA 40559/96 HEARING DATE(S) : 30 March 1999 JUDGMENT DATE : 30 March 1999 PARTIES : GM & R WILCOX, JW & B SPICER - A KIAMA DEVELOPMENTS CO PTY LTD & JOHN DESMOND FRENCH - R JUDGMENT OF : Sheller JA LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : 3367/95 LOWER COURT JUDICIAL OFFICER : Hulme J COUNSEL : G R Waugh - A D Knaggs - R SOLICITORS : Martins - A D Knaggs - R CATCHWORDS : PRACTICE & PROCEDURE - application for stay of execution of judgment - where application for appeal pending - consequence of execution of judgment may render an appeal nugatory CASES CITED: Alexandra v Cambridge Credit Corporation (1985) 2 NSWLR 685 DECISION : Application dismissed with costs THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40559/96 SHELLER JA Tuesday, 30 March 1999 WILCOX & ANOR v RICHARDSON & ANOR JUDGMENT 1 SHELLER JA: Kiama Developments Co Pty Limited (Kiama Developments) and John Desmond French have filed in the Court a notice of motion in which an order is sought that a judgment of this Court, given on 31 July 1997, be set aside. That notice of motion came before the Registrar, who gave directions about its disposition, including a direction that a timetable be prepared. Separately, the applicants sought an order that execution on the judgment, including cost orders, be stayed pending further order. That part of the application has come before me. 2 Before me, Mr Knaggs appeared for the applicants, Mr Waugh appeared for the original and successful appellants in this Court, Graham Milton Wilcox, Rossana Wilcox, John William Spicer and Birgitta Spicer. Mr Young, who appeared for John Herbert Richardson and Judith Dean Richardson, two of the respondents in the Court of Appeal, announced his appearance but then was excused from further attendance. 3 The applicants rely on material put before me in the form of an affidavit by their solicitor, Mr Knaggs, of 16 March 1999 and an affidavit which was filed today of John Desmond French of 29 March 1999. Annexed to that were affidavits sworn and filed in the Local Court proceedings, giving some indication of the financial state of Kiama Developments and of Mr French. Also annexed was a statutory demand served on Kiama Developments on behalf of what I will call the Wilcox interests in respect of an outstanding amount said to be costs of the appeal. 4 This application is in a number of respects an unusual one, not least because the order of this Court was pronounced in the middle of 1997 and as a result of course there is now no appeal before the Court. This application is made pending an application to set aside this Court's orders. The grounds for that are an alleged illegality of the sublease which was the matter in issue between the parties in the appeal. The appeal hearing proceeded and was successful on the basis that that sublease was legal. It is now asserted that it was illegal, with the consequence that the appeal must necessarily have failed. The point of illegality was apparently not raised until January of this year. It was then raised in separate proceedings between at least some of the parties of the original appeal but certainly the parties now before me. 5 The evidence is not in a particularly satisfactory form. The principles to be applied on a stay application are set out in Alexandra v Cambridge Credit Corporation (1985) 2 NSWLR 685. 6 The applicants have the task of demonstrating that the appellants should not in this case enjoy the fruits of their victory in this Court. It seems to me that the task to demonstrate that a stay should be granted in the circumstances of this case, is indeed a heavy one. 7 Mr Knaggs, who has put submissions on behalf of the applicants, stresses that a consequence of the statutory demand may be that the corporate applicant be wound up. It is suggested that if this stay is not granted, the point of the appeal may be lost or, alternatively, if the company is wound up, the liquidator may choose not to proceed with it. I am not particularly impressed by these arguments. 8 The illegality point, which has been put before me with considerable enthusiasm, may or may not succeed when the matter comes back to be dealt with by a full Court in due course. There are, as has been indicated in written submissions put before me by Mr Waugh, a number of reasons why there may be difficulty with that application. However, if indeed it turns out that the sublease was illegal, there seems no reason why, exercising his discretion in the ordinary way, a liquidator may not proceed with it. It will, of course, be entirely a matter for the liquidator if the company does proceed to be wound up. 9 The long and the short of this is that this is a matter which has been running over a number of years, which was dealt with by this Court something like eighteen months ago, and a new issue has been raised at this stage. I am not persuaded that in the circumstances that have been advanced in written submissions before me, which I have read, it is an appropriate case for the grant of a stay. 10 Accordingly, the application is dismissed with costs. By the application, I mean the application for order three in the notice of motion. ******* DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. 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