Case: Kalifair Pty Ltd v Digi-Tech (Australia) Ltd; McLean Tecnic Pty Ltd v Digi-Tech (Aust) Ltd (2002) 55 NSWLR 737 
Outcome: distinguished
In addition to the two authorities relied upon by Mr Bromwich, Mr Bennett relied upon Kalifair Pty Ltd v Digi-Tech (Australia) Ltd; McLean Tecnic Pty Ltd v Digi-Tech (Aust) Ltd (2002) 55 NSWLR 737; especially at [16] [29]. In the passages in Kalifair 55 NSWLR 737 to which my attention was directed, the NSW Court of Appeal was concerned with the prospect that, because the appellants with whom they were dealing in those paragraphs had no assets, the respondent might move to wind them up and thus render their appeals nugatory. The present case, of course, is not such a case. Indeed, APIR appears to have net assets at its disposal. On one view of the evidence, it has sufficient assets to meet the whole of the judgment including interest and probably costs. There was no evidence as to the assets and liabilities of Messrs Broso and Riley. 52 In my view, the present case can be distinguished from the circumstances before the Court in Kalifair 55 NSWLR 737. 53 In my view, the appellants' prospects on appeal are weak. I express this view as a tentative or preliminary view and only for the purpose of giving appropriate weight to those prospects when considering the present application. 54 Further, I am not convinced that the Amended Notice of Appeal contains a ground of appeal which supports Mr Bennett's submission concerning his Honour's reasoning in respect of damages and relief generally. Ground 8 seems to raise a different point and no other ground of appeal seems apt to cover the matter. 69 His Honour's orders in respect of both interest and costs are discretionary orders. The reasons which his Honour gave for making the orders which he made in respect of interest and costs are not obviously wrong. The appellants' prospects of overturning those orders are weak. In my view, the appellants have not advanced any compelling reason or argument for staying his Honour's orders in respect of interest and costs. Unlike Kalifair 55 NSWLR 737, the evidence does not demonstrate that the appellants cannot pay the amounts reflected in the orders which his Honour made. The evidence does not support a conclusion that the appeal will be rendered nugatory if no stay is granted. There is no evidence to suggest that payments made by or on behalf of the appellants to the respondent in fulfilment of his Honour's orders will not be able to be refunded in the event that the appeal is successful. 70 Having regard to the fact that the appellants are quite content to take back the shares and refund to the respondent the principal sums which it paid to the appellants for the acquisition of the shares, there is no justification for a stay of the reversal orders in the present case. Once that conclusion is reached, it seems to me that there is no justification for a stay of his Honour's orders in respect of interest and costs. All of the factors considered above point to this conclusion. 71 Were I minded to grant a stay of his Honour's orders in respect of interest and costs, I would only consider doing so if adequate security were provided. But, since there is no suggestion that the respondent will not be able to restore all payments made to it in the event that the appeal is successful, I think that the Court's discretion to deprive the respondent of the fruits of its success at trial should not be exercised in the present case by granting a stay on condition that adequate security is provided. 72 The respondent expressed concerns in argument before me that, should the appeal be successful, it would wish to have the option of retaining the shares and not want to be left in the position where the question of what should happen to the shares is within the sole control of the appellants. Indeed, the respondent went so far as to submit that it should not have to execute share transfers pursuant to orders 2, 3, 4 and 5 of his Honour's orders until the appellants have paid to it the sums required to be paid pursuant to orders 2, 3, 4 and 5 as well as those sums required to be paid pursuant to orders 6 and 7 (which dealt with interest and costs). In my view, his Honour's orders do not permit such a stance to be adopted by the respondent. Further, in circumstances where the relief granted conforms to the relief sought and where there has been no appeal by the respondent against the orders made on 30 July 2008, the respondent's stance is untenable. 73 In my judgment, if the appellants' application for a stay is refused, the shadows at which the respondent has been boxing will disappear. 74 For all of the above reasons, the appellants' application for a stay will be dismissed with costs. I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Foster. Associate: Dated: 23 September 2008 Counsel for the Appellants: Mr DMJ Bennett QC with Mr MJ Heath Solicitor for the Appellants: Williams Love &amp; Nicol Counsel for the Respondent: Mr R Bromwich Solicitor for the Respondent: Gambin Legal Date of Hearing: 18 September 2008 Date of Judgment: 23 September 2008 AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2008/1448.html