Zian Fu v Kiem Dang Investment Pty Ltd [2009] NSWCA 380

New South Wales Court of Appeal

CITATION: Zian Fu v Kiem Dang Investment Pty Ltd [2009] NSWCA 380

HEARING DATE(S): 23 November 2009

JUDGMENT DATE: 23 November 2009

JUDGMENT OF: Hodgson JA at 1

EX TEMPORE JUDGMENT DATE: 23 November 2009

DECISION: Application dismissed with costs.

CATCHWORDS: PROCEDURE - Stay of orders pending appeal - Requirements for grant of stay.

CATEGORY: Procedural and other rulings

CASES CITED: Kalifair Pty Ltd v Digi-tech (Australia) Ltd [2002] NSWCA 383

Zian FU (first applicant/ first appellant) PARTIES: Cheng YAO (second applicant/ second appellant) KIEM DANG INVESTMENT PTY LIMITED (first respondent) JEWEL FOOD STORES PTY LIMITED (second respondent)

FILE NUMBER(S): CA 40366/09

COUNSEL: M THOMPSON (applicants/ appellants) C FREEMAN (first respondent)

SOLICITORS: Byles Canceri (applicants/ appellants) Than & Co (first respondent)

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 20427/07

LOWER COURT JUDICIAL OFFICER: Patten AJ

LOWER COURT DATE OF DECISION: 28 August 2009, 10 September 2009

LOWER COURT MEDIUM NEUTRAL CITATION: Kiem Dang Investment Pty Ltd v Jewel Food Stores Pty Ltd & Ors [2009] NSWSC 870

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40366/09 SC 20427/07

HODGSON JA

MONDAY 23 NOVEMBER 2009 Zian FU and 1 Ors v KIEM DANG INVESTMENT PTY LIMITED and 1 Ors Judgment 1 HODGSON JA: I am dealing with an application brought by the appellant in these proceedings for an order that the judgment and orders of the primary judge of 10 September 2009, as read with the judgment of 28 August 2009, be stayed pending the determination by this Court of the appeal. 2 As stated by the Court of Appeal in Kalifair Pty Ltd v Digi-tech (Australia) Ltd [2002] NSWCA 383 at paragraph [18], an appellant seeking a stay must generally show that the appeal raises serious issues for determination of the appellate Court, and that there is a real risk that the appellant will suffer prejudice or damage if a stay is not granted which will not be redressed by a successful appeal. 3 A usual way of showing a risk of prejudice or damage of this kind is to lead evidence that there is a real risk that, if the money is paid over to the respondent to the appeal and the appeal succeeds, the money, or some of the money, will not be recovered back from the respondent. There is no evidence to that effect in this application, and indeed there is affirmative evidence from the respondent suggesting that the respondent would be able to repay the money if the appeal were to succeed. 4 Another possible way of satisfying this second requirement is to show substantial hardship, and to show that if the judgment is not stayed and is enforced against the appellant, the appellant will be deprived of the means to pursue the appeal. There isn't any evidence on that matter either in this case. 5 In those circumstances, the appellant seeks to rely on a general submission that having to pay over the judgment at this point would be prejudicial, and to seek to make out a powerful case on the other aspects that might justify a stay, namely, the serious issues for determination. For that reason, perhaps more time has been spent than is usual in an application of this kind on the issues raised by this appeal. 6 Essentially the appellant relies on two points. First it says that the primary Judge was in error in rejecting unchallenged evidence that a problem with a leaking roof of the subject premises continued until January 2007; and secondly, that the primary Judge was in error in rejecting evidence from one of the lessor's own witnesses that the premises were not ready for occupation on 24 August 2007 because some tiles had not been laid by that time. It seems to me that, while both those particular findings of fact might be successfully challenged on appeal, the real problem for the appellant is that even if those challenges were successful, the appellant would still face considerable difficulties in succeeding in the appeal. 7 As regards the first matter, there would be the difficulty that the appellant does not appear to have evidence affirmatively suggesting any continuing problem with a leaking roof in the latter half of 2007, which would be the relevant time, and the appellant would still face considerable difficulties in establishing that the leaking roof, if the roof was leaking at that time, was such as to amount to a fundamental breach of the lease by the lessor. It seems to me that to make a substantial difference to the result, the appellant would have to overcome both those additional hurdles. 8 As regards the other matter, it seems to me that, even if the appellant succeeded in a challenge to the primary judge's decision that those tiles were in place on 24 August, the circumstance that these tiles were laid some days later would in all probability not invalidate the notice subsequently given by the lessor, and again would not make a substantial difference to the result of the case. 9 It seems me therefore this is a case where the appellant has not shown in a substantial sense a real risk of prejudice or damage if a stay is not granted that would not be redressed by successful appeal, and has not shown a particularly strong case as regards the grounds of appeal. 10 For those reasons in my opinion the application should be dismissed, and I order that the application is dismissed with costs. oOo