Wilcox v Richardson & Anor [1999] NSWCA 329

New South Wales Court of Appeal CITATION : Wilcox v Richardson & Anor [1999] NSWCA 329 FILE NUMBER(S) : CA 40559/96 HEARING DATE(S) : 30 August 1999 JUDGMENT DATE : 30 August 1999

Graham Milton Wilcox Rosanna Wilcox John William Spicer Birgitta Spicer PARTIES : v John Herbert Richardson Judith Dean Richardson Kiama Development Co Pty Ltd John Desmond French JUDGMENT OF : Mason P at 1

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT FILE NUMBER(S) : ED 3367/95 LOWER COURT JUDICIAL OFFICER : Hulme J

COUNSEL : C: D Knaggs (solicitor) O: G Waugh SOLICITORS : C: Douglas Knaggs, Woolloomooloo O: Heckenberg & Associates, Sydney CATCHWORDS : Stay refused - No question of principle CASES CITED: Gamser v The Nominal Defendant (1976) 136 CLR 145 John Fairfax & Sons Ltd v Kelly (No 2) (1987) 8 NSWLR 510 DECISION : Stay refused - No question of principle

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40559/96 ED 3367/95

MASON P

Monday, 30 August 1999

Graham Milton WILCOX & Ors v John Herbert RICHARDSON & Anor

JUDGMENT

1 HIS HONOUR: On 30 March 1999, Sheller JA refused to grant a stay in relation to these proceedings when they were pending in this Court. Since that date, the motion to re-open the orders made in the earlier appeal has been heard and determined in this Court. On 8 June 1999 a Court comprising Meagher JA, Handley JA and Powell JA dismissed the motion with costs on the basis that there was no power to set aside and re-open the final judgment given in the appeal. 2 The claimants before me have sought special leave to appeal to the High Court. The issue which they wish to raise is one that might interest the High Court insofar as considerable water has flowed beneath the bridge since Barwick CJ's judgment in Gamser v The Nominal Defendant (1976) 136 CLR 145. 3 Nevertheless, what is sought in this case is a stay of execution on the costs orders made by the Court of Appeal in July 1997 and perfected in September 1997 when that Court upheld an appeal brought to it. No application was made to the High Court to challenge that order. In saying that, I am not suggesting that that would necessarily have been the proper way to ventilate the new point which was sought to be ventilated by the notice of motion that was disposed of on 8 June 1999. Nevertheless it is a factor which is in my view relevant to be placed in the balance in the context of the principles discussed in John Fairfax & Sons Limited v Kelly No 2 (1987) 8 NSWLR 510. 4 The other factor is that a stay would have the effect of preventing the judgment creditor from presenting a petition in bankruptcy against Mr French, who has committed an act of bankruptcy. Having regard to the rights of a judgment creditor who has the debtor made bankrupt to challenge various transactions occurring within a limited period of time prior to presentation of the petition, the Court ought always to think carefully before granting a stay of execution of a judgment debt where the creditor would wish to proceed at least to the door of the Federal Court. That Court can and normally will grant an adjournment of the hearing of any bankruptcy petition pending the exercise of appellate rights with reference to the judgment debt involved. (See Ahern v The Deputy Commission of Taxation (1987) 76 ALR 137 at 148.) 5 In saying that, I am in no way seeking to pre-empt what the Federal Court may do in the bankruptcy proceedings that may ensue from the presentation of a petition, nor am I seeking to pre-empt whatever the Equity Division may do in relation to the pending winding up proceedings involving Kiama Development Co Pty Limited. But the option of granting an adjournment while preserving the judgment creditor's rights is a factor relevant to whether a court should grant a stay rather than allowing matters to proceed at least that far. 6 Sheller JA was of the view that if the point recently agitated by notice of motion in this Court is a good one, then it is open to the liquidator of the company, if the company is put into liquidation, to continue with it. His Honour was speaking of the time prior to the dismissal of the application in this Court but the same may be said of the position as it now presents itself where the company and Mr French have to move the High Court in order to vindicate their position as they see it. 7 I respectfully agree with the remarks of Sheller JA and would apply them a fortiori to the present application. Accordingly, I dismiss the notice of motion with costs. * * * * * * * *