Afr Group Pty Limited t/as Anytime Fitness Randwick v Bernley Corporation Pty Ltd and Benjamin Thomas Turner

[2019] NSWCA 256

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	AFR Group Pty Limited t/as Anytime Fitness Randwick v Bernley Corporation Pty Ltd & Benjamin Thomas Turner [2019] NSWCA 256
Hearing dates:	14 October 2019
Date of orders:	14 October 2019
Decision date:	14 October 2019
Before:	Brereton JA
Decision:	(1) Execution of the judgment of the District Court given on 11 July 2019 be stayed pending the hearing and determination of the appeal herein upon condition that the appellant by 14 November 2019 pay into court to the credit of these proceedings the principal judgment sum of $195,000. (2) Costs of the motion be costs in the appeal.
Catchwords:	CIVIL PROCEDURE – Court of Appeal – application for stay pending appeal – payment of judgment sum below into Court
Category:	Procedural and other rulings
Parties:	AFR Group Pty Limited t/as Anytime Fitness Randwick (Appellant) Bernley Corporation Pty Ltd (First Respondent) Benjamin Thomas Turner (Second Respondent)
Representation:	Counsel: D Parish (Appellant) A Di Francesco (Respondents)   Solicitors: MDW Law (Appellant) HWL Ebsworth Lawyers
File Number(s):	2019/246468
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Civil Citation: [2019] NSWDC 366 Date of Decision: 30 July 2019 Before: Abadee DCJ File Number(s): 2018/42121

Ex tempore Judgment

1. On 11 July 2019, Abadee DCJ gave judgment that the present appellant AFR Group Pty Limited pay the present second respondent Benjamin Thomas Turner the sum of $195,000, and reserved liberty to make further submissions as to costs and pre-judgment interest. Those issues were addressed in a further judgment given on 30 July 2019, in which his Honour determined that pre-judgment interest should run from the date of the various advances the subject of the principal judgment, and further ordered that the appellant – the defendant below – pay 80% of the costs of the plaintiff. From those judgments, AFR appeals to this Court. The primary judge granted a stay of execution of the judgment for a period of 14 days from 29 August 2019. The appeal has been set down for hearing on 18 December 2019. By motion filed on 20 September 2019, the appellant seeks a stay of the judgment below pending the determination of the appeal.

2. I am content to accept that there are arguable grounds of appeal, and in particular that the ground which complains of error in allowing pre-trial interest from the date of each of the respective advances, which do not appear to have been made on terms that interest would be paid, has apparent force.

3. The principal basis for the application was that there was a risk that, if successful, the appellant would be unable to recover any moneys paid to the respondent under the judgment. Without necessarily accepting that there is a risk of dissipation, the respondent has proffered an arrangement by which any moneys would be retained in his solicitor's trust account, not to be dealt with except pursuant to further order of the Court, as a prophylactic against any risk of dissipation. The same result would be obtained if the judgment moneys were to be paid into court.

4. The appellant submits that on the question of balance of convenience there is no evidence that it has dissipated its assets in such a way as to defeat any judgment and no reason for thinking that it would do so. However, the appellant has not adduced any affirmative evidence that compliance with the judgment would occasion hardship to it. In those circumstances, whether a risk that it would dissipate assets pending the hearing or that assets which would be available to satisfy the judgment now might not be available following the hearing of an appeal, is of limited weight.

5. In any event, a concern does arise from the circumstance that it appears that since the hearing in the District Court a net amount of about $180,000 – which would have been enough to satisfy most of the principal judgment – has been withdrawn on loan account for the benefit of the principal of the appellant or a company associated with him.

6. In my view a case for a stay is made out only if the principal judgment sum of $195,000 is paid into court. I propose to limit the amount required to be paid in to the principal amount of the judgment on account of the prima facie strength of the ground of appeal concerning the date from which interest runs.

7. The Court orders that:

1. Execution of the judgment of the District Court given on 11 July 2019 be stayed pending the hearing and determination of the appeal herein upon condition that the appellant by 14 November 2019 pay into court to the credit of these proceedings the principal judgment sum of $195,000.

2. Costs of the motion be costs in the appeal.

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Decision last updated: 18 October 2019