New South Wales Court of Appeal CITATION: Equititrust Limited v Manttan [2010] NSWCA 95 HEARING DATE(S): 3 May 2010 JUDGMENT DATE: 3 May 2010 JUDGMENT OF: Hodgson JA EX TEMPORE JUDGMENT DATE: 3 May 2010 DECISION: Application for a stay dismissed with costs. CATCHWORDS: PROCEDURE – Stay of order for removal of caveats – Reliance by primary judge on information not supported by proper evidence – Whether case made out for stay pending hearing of application for leave to appeal. CATEGORY: Procedural and other rulings PARTIES: EQUITITRUST LIMITED ACN 061 383 944 (Applicant) Michael Alan MANTTAN (Respondent) FILE NUMBER(S): CA 2010/91165 COUNSEL: M YOUNG (Applicant) F GUTIERREZ (Respondent) SOLICITORS: Bransgroves Lawyers (Applicant) Zak Tayyar Burkett & Taylor Lawyers (Respondent) LOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): 2010/91165 LOWER COURT JUDICIAL OFFICER: Gzell J LOWER COURT DATE OF DECISION: 23 April 2010 - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2010/91165 HODGSON JA Monday 3 MAY 2010 EQUITITRUST LIMITED v Michael Alan MANTTAN Judgment 1 HIS HONOUR I am dealing with an application for a stay of an order made on 23 April 2010 by Justice Gzell that certain caveats be withdrawn for the purpose of completing an identified contract of sale, which I am told is due for completion tomorrow. 2 The order does not in terms give a date when the withdrawal is to take place. But in my opinion, the form of the order requiring withdrawal for the purpose of completing this contract sufficiently indicates that the caveats are to be withdrawn so as to enable completion at the time arranged for completion. 3 I have before me a summons seeking leave to appeal from the decision of Gzell J and a notice of appeal. I don't have a notice of motion seeking a stay pending the hearing of the appeal, but that application has been made orally by Mr Young who appears for the applicant, Equititrust. 4 Mr Young's submission is that there are good prospects for obtaining leave to appeal and succeeding on the appeal, because the decision of the primary judge could really be justified only on the basis that there was some evidence of urgency in relation to the completion of this particular sale and, in Mr Young's submission, there was no such evidence. Accordingly, he submits that if the order made by the primary judge is not stayed the appeal will be rendered nugatory and that accordingly the appropriate course is to stay the order pending the hearing of the appeal. 5 There is some force in Mr Young's submission about the lack of evidence about urgency concerning completion of this particular sale. There was material put to the primary judge from the bar table suggesting such urgency, and the primary judge took the view that he could appropriately act on that. In my opinion there is an element of discretion in a judge hearing an urgent application of this kind to act on information that may not be supported by proper evidence, and I am not prepared to hold in the circumstances that the primary judge was necessarily wrong in having regard to what he was told from the bar table. 6 It does seem to me that there are also substantial obstacles to this appeal. It does require the grant of leave and the upholding of an appeal in relation to a matter where the discretion of a primary judge looms very large and is of very significant degree. The evidence as to balance of convenience does not, in my view, significantly favour the applicant. Although there are valuations pointing to a higher value than is achieved under the contract, there are reasons in the evidence why those figures may not now be achieved, and the evidence does not suggest that these sales are anything other than genuine, arms-length sales entered into in commercial circumstances with a view to achieving the best price. 7 I note also that applicant has not yet itself commenced proceedings to seek enforcement of the equitable interest it claims. It is true, as put by Mr Young, that this could have been a condition of allowing the caveats to remain on the title, and such a condition would undoubtedly have been complied with; but in my view a person seeking to maintain a caveat should, when that caveat is challenged, act quite promptly in itself commencing appropriate proceedings to enforce the interest alleged in the caveat. 8 For all those reasons, in my opinion, a case is not made out for a stay and I dismiss the application for a stay with costs. oOo 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. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.