Park & Anor v Brothers [2003] NSWSC 1054

New South Wales Supreme Court

CITATION : Park & Anor v Brothers [2003] NSWSC 1054 HEARING DATE(S) : 11 November 2003 JUDGMENT DATE : 11 November 2003 JURISDICTION: Equity JUDGMENT OF : Campbell J DECISION : Stay refused

CATCHWORDS : PROCEDURE - miscellaneous procedural matters - stay pending appeal - application for stay made to trial judge CASES CITED : Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 Lindsay Gordon Park - First Plaintiff PARTIES : Jill Park - Second Plaintiff Clive Roy Brothers - Defendant FILE NUMBER(S) : SC 1224/01 COUNSEL : J A Trebeck - Plaintiffs A G Rogers - Defendant SOLICITORS : Holman Webb - Plaintiffs D G Skinner & Associates - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

CAMPBELL J

TUESDAY 11 NOVEMBER 2003

1224/01 LINDSAY GORDON PARK & ANOR v CLIVE ROY BROTHERS JUDGMENT – Ex Tempore (On Stay Application) 1 HIS HONOUR: In this matter the defendant has made an oral application, unsupported by any evidence, for a stay of execution pending appeal. When I say unsupported by any evidence, I mean unsupported by any evidence which was filed specifically for the purpose of the stay application. 2 In connection with the stay application an affidavit which Mr Park swore on 30 July 2003 has been referred to. That affidavit is one which Mr Park swore at a time when consideration was being given to adjournment of the proceedings, and it was his concern to place before the Court his financial position as a factor against the grant of an adjournment. 3 That affidavit discloses that as at 30 July 2003 he owed Elders an amount of $1.35 million, which was secured over his rural properties in Deniliquin. That amount was repayable as at 30 July 2003, though he had persuaded Elders to give him until the end of August 2003 to repay the amount due or make some other arrangement satisfactory to it. 4 As well, at the end of July he had an overdraft to Bendigo Bank of $760,000. That overdraft was well outside arrangements, as his arrangement with the Bendigo Bank was for an overdraft of $200,000. At the end of July Bendigo Bank had required him to bring the overdraft back within arrangements. 5 The property in question is one which was purchased for $3.35 million. The evidence in the case suggested that the Parks had paid a little more than market value for the property, and that its value was more of the order of $3.15 million. There was also evidence in the case about the Parks having other rural properties at Deniliquin, and having a house at some place other than the property the subject of this litigation. It was not necessary for the purpose of the case for any detail to be given about the value of those assets, or about what, if any, encumbrances they are subject to. 6 The terms on which the property the subject of this litigation was purchased, are set out in paragraph 15 of the judgment I delivered on 7 October 2003. It was a contract which made provision for payment by instalments. The time for payment of all instalments, apart from the last, has now passed. That last instalment is an instalment of $2 million, which is due on 7 September 2005. The contractual arrangement is that it was to bear interest at 7 percent in the meantime. Thus the amount actually payable in September 2005 will be somewhat greater than $2 million. 7 The judgment I have given is for a little less than $1.7 million. A judgment, once given, prima facie entitles the successful party to the fruits of the judgment. Since the decision of the Court of Appeal in Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 a somewhat more liberal approach has been taken to the granting of stays pending appeal. Nonetheless, it is still necessary for a case to be made out that a stay is appropriate so as to displace the prima facie correctness of the first instance decision. 8 In the present case no grounds of appeal have been formulated. That is so, notwithstanding that the reasons for judgment were handed down on 7 October 2003, and on 23 October 2003 I listed the matter for the making of orders, but granted an adjournment until today so that counsel who was at that time newly instructed in the matter for the defendant, would have time to read material with a view to making submissions on costs. 9 Any judge who is asked to make a decision on a stay pending appeal should take into account the prospects of success in the appeal. When it is the trial judge who is asked to grant the stay, this places him or her into a difficult situation. I prefer to approach the matter by assuming, without deciding, that there are some prospects of success in an appeal against my judgment. I do this because having to form a view about the prospects of such an appeal is an intellectual task which I am particularly unfit to perform, because I come to it with a considered predisposition that my decision is right. The absence of any grounds of appeal makes the task of deciding prospects of success on appeal even harder. 10 On the assumption that there are some prospects of success of the appeal, it seems to me that there is still no case made out for a stay. There is no basis for believing that, if the judgment were to be overturned in its entirety, the plaintiffs would be unable to meet it. There is evidence that the plaintiffs have pressing financial needs, and I proceed on the basis that if they are paid the amount of the judgment, they are likely to use at least part of it to repay the debts they owe their financiers. However, even if that happens, there is still no evidentiary basis made out to suggest that, if the defendant were completely successful in its appeal, the Parks would have insufficient assets to be able to meet the obligation to repay which would thereby arise. For those reasons I decline to grant a stay. 11 I order the defendant to pay the costs of the application for stay. **********