Supreme Court New South Wales Medium Neutral Citation: Coplin v Al Maha Pty Limited (No. 2) [2017] NSWSC 101 Hearing dates: 17 February 2017 Date of orders: 17 February 2017 Decision date: 17 February 2017 Jurisdiction: Equity Before: Lindsay J Decision: Upon undertakings as to damages and due prosecution of the appeal, and on agreement as to security for the costs of the appeal, ORDER that a judgment be stayed pending the determination of an appeal or further order. Catchwords: Judgment and Orders – Appeal – Stay pending appeal – Stay granted on terms Legislation Cited: - Cases Cited: Coplin v Al Maha Pty Limited [2016] NSWSC 1745 Port Macquarie-Hastings Council v Divera Pty Limited [2017] NSWCA 4 at [29]-[31] Texts Cited: - Category: Consequential orders (other than Costs) Parties: Plaintiff: Gary Coplin First Defendant: Al Maha Pty Limited ACN 118 230 087 Second Defendant: Property Fox Pty Limited ACN 149 088 559 Representation: Counsel: Plaintiff: Ms B Oliak First Defendant: TM Faulkner SC Second Defendant: FF Salama Solicitors: Plaintiff: E Berman & Co. First Defendant: HWL Ebsworth Lawyers Second Defendant: Jemmeson & Fisher Lawyers File Number(s): 2015/00143602 Judgment – EX TEMPORE 1. On 16 December 2016, I published reasons for judgment in these proceedings, subsequently reported as Coplin v Al Maha Pty Limited [2016] NSWSC 1745. 2. Later that same day I made orders to give effect to those reasons (substantially in the terms recorded, or foreshadowed, in paragraphs 262-266 of the reasons for judgment) and, thereby, to effect a final determination of the proceedings. 3. The orders concluded with an order that they be entered forthwith. 4. On an oral application made on behalf of the first defendant, the orders thus made, and entered, included an order providing for a stay of the substantive orders up to and including 10 February 2017. 5. The object of the stay was, inter alia, to permit the defendants to consider their rights of appeal, allowing them sufficient time to articulate grounds of appeal in support of a continuation of the stay pending appeal. 6. The first defendant filed a notice of intention to appeal on 13 January 2017. The second defendant filed one on 12 January 2017. 7. When the proceedings came before me again on 10 February 2017, the first defendant applied for a continuation of the stay (by a notice of motion filed 3 February 2017) but, contrary to my expectation, did not support the application by reference to a notice of appeal specifying grounds of appeal. 8. Counsel for the first defendant informed me that, although a draft notice of appeal had been prepared, it was not yet in a form settled for filing. 9. Accordingly, the first defendant's motion was adjourned for a week, until today, to enable the notice of appeal, with grounds, to be filed. The stay granted on 16 December 2016 was, in the meantime, continued up to and including today. 10. As anticipated, the first defendant filed a notice of appeal, with grounds, on 15 February 2017. 11. The appeal (in proceedings numbered 2017/12148) is listed for directions on 12 April 2017. 12. As anticipated, the first defendant filed written submissions in support of its motion. The plaintiff, for his part, also filed written submissions. The third defendant filed no written submissions but, by counsel, expressed support for the first defendant's application. 13. The first defendant's written submissions refer to established principles recently summarised by Payne JA in Port Macquarie-Hastings Council v Divera Pty Limited [2017] NSWCA 4 at [29]-[31]. 14. Applying those principles to the facts of the case, I am satisfied that, provided the first defendant continues to be bound by the undertaking as to damages thus far given in support of the stay, an order for continuation of the stay pending determination of the appeal, or further order of the Court, is appropriate. 15. Having reviewed the grounds of appeal I am satisfied - subject to one qualification - that the appeal is reasonably arguable, although - it seems to me - essentially factual in character. 16. I am equally satisfied that the balance of convenience favours a stay insofar as, if there be no stay, the plaintiff might - although there is no current threat to do so - proceed to sell, or charge, the property the subject of the proceedings and, thereby, expose the first defendant to a risk that a successful appeal might be nugatory. 17. The qualification I express about the grounds of appeal is that, upon a review of the reasons for judgment in the week that has intervened since the parties were last before me, I am affirmatively satisfied that the plaintiff is correct in characterising a reference to "$1.77 million" in each of paragraphs 9 and 17 of my reasons for judgment as a typographical error. The correct figure, which I had in mind in formulating my reasons, is $1.177 million. 18. As foreshadowed last week, I do not propose to make an order purporting to amend my reasons for judgment to effect a correction. There is no error in the expression of the orders made, and entered, on 16 December 2016. 19. The error is in the supporting reasons for judgment. It is, or may be, open to the first defendant to contend in the Court of Appeal that the Court of Appeal should have regard to the reasons for judgment as published without regard to any correction made subsequently to entry of the orders designed to give effect to the reasons. 20. I do not intend to shut the first defendant out from making such a case if it is minded so to do. 21. However, if it be relevant, I record, as I have, that I regard ground 6 of the first defendant's notice of appeal as erroneous insofar it is based upon a clerical error in transcription of my reasons for judgment. 22. Before making an order for continuation of the stay sought by the defendants, I record three matters of detail. 23. First, in support of the stay the first defendant gives to the Court a continuing undertaking as to damages, together with an undertaking that it will prosecute its appeal with all due expedition. 24. Secondly, the first defendant supports its application for a continuing stay with a formal agreement for moneys due to be paid or refunded to it under the orders under appeal to be used as security for costs in the event that the appeal is unsuccessful and the plaintiff succeeds in obtaining an order for costs from the Court of Appeal. 25. Thirdly, I note that the intention of the notice of appeal, as I understand it, is that no relief is sought against the second defendant; but the relief sought in the notice of appeal is intended to favour the second defendant to the extent that the first defendant seeks an order that the plaintiff pay the costs of both defendants of the proceedings generally. 26. I should also note that the absence of a cross-claim on the part of the first defendant may be explained by the continuing operation of the option it claims to have. Questions might arise in the future as to whether (and, if so, how) the first defendant might exercise, or be required to exercise, the option - upon an assumption that it is entitled to the option - but those matters do not have to be addressed by me today. I note them only for completeness. 27. In all the circumstances I make the following notations and orders: 1. Note that the first defendant, by its counsel, gives to the Court the usual undertaking as to damages. 2. Note that the first defendant, by its counsel, gives to the Court an undertaking that it will prosecute with all due expedition its appeal in the proceedings numbered 2017/12148 in the Court of Appeal. 3. Note the agreement of the first defendant that moneys presently in Court, or which may be refundable to it under the orders made on 16 December 2016, are available, should the Court of Appeal so determine, as security for the plaintiff's costs of the appeal. 4. Upon the undertakings and agreement recorded in paragraphs 1, 2 and 3, order that orders 1 to 7, inclusive, of the orders made on 16 December 2016 be stayed pending the determination of the first defendant's appeal or further order of the Court or the Court of Appeal. 5. Order that the costs of the first defendant's notice of motion filed 3 February 2017 be the respective parties' costs in the appeal. 6. Order that these orders be entered forthwith. ********** 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: 20 February 2017