Case: Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 69 ALR 265
Outcome: cited
The application is made pursuant to O 52 r 17 which empowers the Court to order a stay of execution under a judgment under appeal. There are two competing principles on this application. First, there is the principle that a person ought not to be deprived of the fruits of a judgment whilst the losing party appeals against that judgment. There is the further principle where a party who has an arguable right of appeal ought not to have the appeal rendered nugatory by the successful party at trial being allowed to dissipate the fruits of the judgment. That second principle was considered by Brennan J in Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 69 ALR 265. The judgment was handed down by Mansfield J on 4 December 2006 and on that occasion at the behest of the applicant, his Honour stayed the order until yesterday. Yesterday the applicant lodged his notice of appeal and made this application. The application could not be heard last night and has been heard during today. The moneys still remain in Minter Ellison's Trust Account. 3 The applicant seeks an order restraining the joint receivers, managers and liquidators from paying out those moneys to themselves pending the hearing of the appeal. 4 It is likely, I think, that the appeal could not be heard before May of next year. 8 At the same time, they produced a draft application and a draft affidavit which they said would be issued on behalf of Mr Sobey to establish his entitlement to the security over the property. That application was never issued nor was the affidavit ever sworn. Instead, after some considerable delay on the part of the applicant, on 23 August 2006 the joint receivers and managers and liquidators of themselves brought an interlocutory application for directions in relation to Mr Sobey's claim. The matter was managed by Mansfield J, who was also the trial Judge. He gave certain directions with which Mr Sobey did not comply. 9 As a result of Mr Sobey's failure to comply with Mansfield J's directions, a hearing date which had been set for 6 November was vacated and a further hearing date was arranged for 24 November. On 24 November, Mr Sobey's counsel sought an adjournment of the proceeding so that he might bring in evidence from a psychologist to the effect that Mr Sobey was not in a position to conduct the proceedings. He relied for his application on an affidavit of Mr Sobey's solicitor sworn on 21 November 2006 to which was annexed a report dated 20 November 2006 of Dr Wright, who is an occupational physician treating Mr Sobey. 10 The report and other medical evidence shows that Mr Sobey underwent surgery in August 2006 and complications developed. One of those complications was a pulmonary embolism and that gave rise to a chest infection which required drainage. Dr Wright was specifically asked whether Mr Sobey could give detailed instructions in relation to the action. He said that Mr Sobey was not medically fit to provide detailed instructions. He passed no opinion on whether or not he could give general instructions in relation to the matter. 11 His report does indicate that Mr Sobey would not be medically fit to undergo cross-examination of half a day. The trial Judge refused the application for the adjournment and proceeded to hear the matter. In refusing the adjournment his Honour had regard to the history and the delay by Mr Sobey in the institution of any proceedings and in relation to Mr Sobey's refusal or neglect in complying with any directions. He was not satisfied that Mr Sobey's solicitors could not address the matters which were under consideration and, therefore, refused the application for an adjournment. 12 He then decided the matter on the evidence which was adduced by the liquidator and determined that there was not sufficient evidence to establish, as Mr Sobey claimed in his solicitor's letter of 13 December 2005, that Mr Sobey had an equitable interest in the property. He, therefore, made the orders to which I have referred and which are now sought to be stayed pending the appeal. 13 Whilst there are a number of grounds of appeal in the notice of appeal, essentially two matters are raised. First, it is said that the trial Judge was wrong to refuse the adjournment. Secondly, it is said that if the trial Judge was right to allow the adjournment, the trial Judge was wrong to conclude that Mr Sobey's claim of an equitable interest failed. 18 In the circumstances, I am not disposed to grant any further stay of the order made by Mansfield J on 4 December 2006 and, for those reasons, the application for a stay is dismissed. There will be an order that the applicant pay the respondent's costs of the application. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lander. Associate: Dated: 22 December 2006 Counsel for the Applicant: Mr Lazarevich Solicitor for the Applicant: Miranda Ball and Co Counsel for the Respondents: Mr Hoffmann QC Solicitor for the Respondents: Minter Ellison Date of Hearing: 15 December 2006 Date of Judgment: 15 December 2006 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2006/1826.html