Supreme Court New South Wales Medium Neutral Citation: IceTV Pty Ltd v Ross & Ors [2011] NSWSC 1211 Hearing dates: Thursday, 29 September 2011 Decision date: 29 September 2011 Jurisdiction: Equity Division - Duty List Before: Brereton J Decision: Motion dismissed with costs. Limited stay granted. Catchwords: PRACTICE AND PROCEDURE - Application for stay of execution of judgment pending determination of appeal - right of plaintiff to benefit of judgment upheld twice at successive appellate levels - analysis of prospects of success at appeal - prospects low given appeal on a discretionary judgment on a matter of practice and procedure - application dismissed - limited stay granted so Court of Appeal can consider application for stay pending application leave to appeal. Cases Cited: Alexander and Others v Cambridge Credit Corporation Ltd (Receivers Appointed) and Another (1985) 2 NSWLR 685 IceTV v Ross & Ors [2011] NSWSC 1093 Re Middle Harbour Investments Ltd (in Liq) (Court of Appeal, 15 December 1976, unreported) Category: Procedural and other rulings Parties: IceTV Pty Ltd (plaintiff) Duncan Ross (first defendant) Peter Vogel (second defendant) Vogel Ross Pty Ltd (third defendant) Representation: Counsel: Mr JS Cooke (plaintiff) Mr P Vogel (defendants, in person) Solicitors: Bartier Perry (plaintiff) File Number(s): 2004/254759 Judgment (ex tempore) 1HIS HONOUR: On 9 September 2011 I dismissed the defendants' motion for a stay of execution of the orders made by Rein J on 18 September 2009 [ IceTV v Ross & Ors [2011] NSWSC 1093]. By motion filed on 19 September 2011, the defendants make a further application for a stay, pending the determination of an appeal that they propose to bring against that decision, having on 14 September 2011 filed a Notice of Intention to Appeal. 2My refusal of a stay is properly characterised as an interlocutory decision. Leave to appeal from that decision would be required. No application for leave to appeal has yet been made. 3On an application for a stay pending an appeal, the considerations and approach of the Court is well established: see Alexander and Others v Cambridge Credit Corporation Ltd (Receivers Appointed) and Another (1985) 2 NSWLR 685, where the Court of Appeal outlined the relevant principles as follows (at 694-695): It is sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of discretion in his favour. There are other principles to be kept in mind. The onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties ... The mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears ... The Court has a discretion whether or not to grant the stay and, if so, as to the terms that would be fair. In the exercise of its discretion, the Court will weigh considerations such as the balance of convenience and the competing rights of the parties before it. ... Two further principles can be mentioned. The first is that where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay ... Thus, where it is apparent that unless a stay is granted an appeal will be rendered nugatory, this will be a substantial factor in favour of the grant of a stay ... Secondly, although courts approaching applications will not generally speculate about the appellant's prospects of success, given that argument concerning the substance of appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interest of the parties, from making some preliminary assessment about whether the appellant has an arguable case. This consideration is protective of the position of a judgment creditor where it may be plain that an appeal, which does not require leave, has been lodged without any real prospect of success and simply in the hope of gaining a respite against immediate execution of judgment... 4In that case, the Court of Appeal also referred with approval to the approach enunciated by Mahoney JA (with whom Moffitt P and Glass JA agreed) in Re Middle Harbour Investments Ltd (in Liq) (Court of Appeal, 15 December 1976, unreported) (at 2): Where an application is made for a stay of proceedings, it is necessary that the applicant demonstrate an appropriate case. Prima facie, a successful party is entitled to the benefit of the judgment obtained by him and is entitled to commence with the presumption that the judgment is correct ... where an applicant for a stay has not demonstrated an appropriate case but has left the situation in the state of speculation or of mere argument, weight must be given to the fact that the judgment below has been in favour of the other party. 5It is important to bear in mind that there are significant distinctions between the circumstances of Alexander v Cambridge Credit (and those in which it is ordinarily applied) and the present case. In Alexander v Cambridge Credit , the party that had been unsuccessful at trial had sought a stay pending the hearing of its appeal to the Court of Appeal. In the present case, the defendants were unsuccessful at trial, and were unsuccessful again in their appeal to the Court of Appeal, were unsuccessful yet again in their application for special leave to appeal to the High Court. They then sought a stay fundamentally to permit them to pursue their second cross-claim. It is from my dismissal of that application that their proposed appeal is to be brought. In other words, what is in issue here is not a right of the plaintiff that is still under litigation, but one that has been determined and upheld twice at successive appellate levels. That is telling, because what is in issue here is not keeping the successful party out of a still disputed claim, but keeping the successful party out of a claim that has been repeatedly vindicated. 6On an application such as the present for a stay pending an appeal from a Judge's decision to the Court of Appeal, it is necessary to form some view of the prospects of success of the appeal. That is an invidious exercise for the Judge who made the decision, and as always I endeavour to approach it with a high degree of preparedness to recognise the possibility of error. 7It seems to me that, the defendant's case, put at its highest, would be that insufficient weight was given to the possibility that, as a result of their second cross-claim, and albeit that it would not result in the extinguishment or reduction of the judgment debt by a set-off because there was no mutuality, nonetheless it might put them in funds - if not by way of a compensatory award of damages then by way of the purchase price for their shares under a "buy-out" order - with which they could discharge the judgment debt, in circumstances where, again albeit that there was no mutuality, there was a very close relationship between the person against whom they might obtain such an order on the cross-claim and the judgment creditor. 8Bearing in mind that the appellants would have to obtain leave to appeal from what is ultimately a discretionary decision on a matter of practice and procedure, it still seems to me a remote prospect that that possibility given full weight, would outweigh the established right of the plaintiffs' to their judgment, but I should recognise the possibility that my judgment is coloured on that question by having been the primary judge, and that there is some possibility that an appellate court could come to a different decision. 9Ultimately, I would not grant the stay sought, pending the hearing of the appeal, but I would be prepared to grant a short stay to enable the matter to be brought before the Court of Appeal where a Judge of Appeal can consider the application for a stay on the basis that it has been refused at first instance, save for the time that it would take to get to the Court of Appeal. 10Accordingly, I would be prepared on that basis to grant a limited stay until Monday week, by which time application could be made urgently to the Court of Appeal for the stay application to be heard in that Court that day. 11I will therefore dismiss the motion with costs, but I will make the limited order to which I have referred, if that remains appropriate once I have heard the motion for leave to pay the judgment debt by instalments. Counsel addressed 12It is appropriate to adjourn the application for leave to pay by instalments. In those circumstances, the parties agree that convenience favours the grant of a stay until the hearing of that motion rather than requiring application to be made to the Court of Appeal before that date. I make the following orders: 1.Order that the defendants' motion filed 19 September 2011 (for a stay) be dismissed with costs. 2.Order that execution of the judgment and orders given on 18 September 2009 and entered on 20 October 2009 be stayed until 7 November 2011. 3.By consent order that the defendants' motion filed 19 September 2011 be heard together with the plaintiff's motion filed 6 September 2011. Fix motions for hearing before me at 9:30 am on 27 October 2011. 4.By consent I make directions in accordance with the document entitled 'Short Minutes of Order' initialled by me, dated this day and placed with the papers. 5.Vacate the appointment before the Registrar on 7 October 2011 and adjourn the motions to 27 October 2011 for hearing. 6.Adjourn the defendants' notice of motion filed 27 September 2011 for leave to pay the judgment by instalments to 27 October 2011 at 9:30am before me. ********** 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. Decision last updated: 21 October 2011