Court of Appeal Supreme Court New South Wales Medium Neutral Citation: SAS Realty Developments Pty Ltd v Kerr [2012] NSWCA 233 Hearing dates: 23 July 2012 Decision date: 23 July 2012 Before: Basten JA Decision: 1. Grant a stay of the order made by the District Court on 4 May 2012 and entered on 12 June 2012 for payment to Mr Kerr of an amount of $453,252.05 by the defendants, SAS Realty Developments and Mr Shen. 2. The costs of this motion are to be costs in the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PROCEDURE - stay - application for stay of order of District Court pending appeal - whether appeal has arguable prospects of success - whether balance of prejudice favours stay - Civil Procedure Act 2005 (NSW), s 67; Uniform Civil Procedure Rules 2005 (NSW), r 51.44 Legislation Cited: Civil Procedure Act 2005 (NSW), s 67 Uniform Civil Procedure Rules 2005 (NSW), Pt 51, r 51.44 Cases Cited: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Category: Procedural and other rulings Parties: SAS Realty Developments Pty Ltd (First Appellant) Sean Shen (Second Appellant) Quentin Kerr (Respondent) Representation: Counsel: Mr D Allen (Appellants) Mr R de Meyrick (Respondent) Solicitors: Widsom Lawyers (Appellants) Terry Leung Link Lawyers (Respondent) File Number(s): CA 2012/174183 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-05-04 00:00:00 Before: Murrell DCJ File Number(s): DC 2010/386136 Judgment 1HIS HONOUR: This matter involves an application for a stay of a judgment of Murrell DCJ in the District Court delivered on 4 May 2012 in which her Honour ordered payment by the appellants to the respondent of an amount of some $400,000 together with interest and awarded costs in favour of the respondent. The matter arises out of a joint venture entered into by the parties with respect to a proposed development at Parramatta. 2The application for the stay is brought pursuant to Pt 51, r 51.44 of the Uniform Civil Procedure Rules 2005 (NSW) which the parties agree is in similar terms to, and engages similar principles as, s 67 of the Civil Procedure Act 2005 (NSW). Reference was made to the statements of principle which derive from Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694 and which I do not need to restate. The issue raised is twofold. One matter is whether there are arguable prospects of success in respect of the grounds of appeal; the second concerns the balance of prejudice if the judgment below is required to be paid forthwith as opposed to delaying that outcome until the judgment of this Court on appeal. 3The question of the prospects of success is not one on which I intend to make any detailed analysis or comment. I am satisfied that there is an arguable point in respect of at least the ground that her Honour failed adequately to deal with the question of the consideration for a variation which occurred in July 2010, dealt with in her Honour's judgment in a number of places in passages to which I do not need to refer. 4So far as the question of prejudice is concerned, it is true as counsel for the respondent has noted, that, although I have before me a set of the assets and liabilities of the two appellants, there is a reasonably high level of indebtedness and the excess of assets over liabilities would provide little leeway if this judgment were paid. 5On the other hand, as counsel for the appellants notes, the effect of requiring payment would be to require the sale of assets which will no doubt take some months and which would not necessarily see a realisation of their full value. It would also potentially mean the abandonment of the joint venture project which I understand is still on foot, although behind time in terms of its schedule. 6In the circumstances it seems to me that although the matter is nicely balanced this is an appropriate case in which to grant a stay of execution of the judgment below and I will so order. I note that the appellants have proceeded with expedition to this point in time in preparing and filing appeal books other than the orange appeal book. I also note the assurance from counsel for the appellants that his written submissions will be available at the first return date on the notice of appeal, namely 1 August 2012. Counsel for the respondent does not suggest there is any reason why a level of expedition should not be granted in this case, although it is not one which necessarily would warrant expedition otherwise, given that I propose to order a stay. I also recommend to the Registrar that it be accorded a degree of expedition without preventing counsel from performing their responsibilities. 7In the circumstances the only order I think I need to make is to grant a stay of the orders made in the District Court on 4 May 2012 and entered on 12 June 2012 for payment to Mr Kerr of an amount of $453,252.05 by the defendants, SAS Realty Developments Pty Ltd and Mr Shen. Costs of this motion are to be costs in the appeal. ********** 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: 02 August 2012