Batterham v Makeig - [2009] NSWCA 295

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Batterham v Makeig [2009] NSWCA 295

FILE NUMBER(S):
40266/09

HEARING DATE(S):
14 September 2009

JUDGMENT DATE:
18 September 2009

PARTIES:
Brian Joseph Batterham (First Appellant)
Batterham's Bus Lines Pty Ltd (Second Appellant)
Peter John Makeig (Respondent)

JUDGMENT OF:
Macfarlan JA

LOWER COURT JURISDICTION:
Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):
SC 4373/07

LOWER COURT JUDICIAL OFFICER:
Ward J

LOWER COURT DATE OF DECISION:
7 May 2008

LOWER COURT MEDIUM NEUTRAL CITATION:
Makeig v Batterham [2009] NSWSC 344

COUNSEL:
G R Graham (Appellants)
G A Sirtes SC (Respondent)

SOLICITORS:
Emery Partners (Appellants)
Somerville & Co (Respondent)

CATCHWORDS:
PROCEDURE - stay of judgment the subject of appeal - no issue of principle

LEGISLATION CITED:
Uniform Civil Procedure Rules 2005

CATEGORY:
Procedural and other rulings

CASES CITED:
Kalifair Pty Ltd v Digi-tech (Aust) Ltd [2002] NSWCA 383; (2002) 55 NSWLR 737
Masri Apartments Pty Ltd (in liq) v Perpetual Nominees Ltd [2004] NSWCA 255; (2004) 209 ALR 86

TEXTS CITED:

DECISION:
(1) Order that the judgment given and orders made by Ward J on 7 May 2009 be stayed until the determination of the appeal in this Court, on condition that the appellants pay to the respondent, or as he may direct, in satisfaction of the judgment the sum of $10,000 on or before the first day of each month commencing between the present date and the date upon which the appeal is determined (save that in respect of the month of October 2009, the payment is to be made by the fifteenth day of the month).
(2) Grant liberty to the appellants to apply on three days notice to the respondent for a variation of Order (1) above.
(3) Order that the hearing of the appeal be expedited.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40266/09
MACFARLAN JA
FRIDAY 18 SEPTEMBER 2009

BATTERHAM v MAKEIG

Judgment

HIS HONOUR:By Notice of Motion dated 24 August 2009, the appellants have sought a stay of execution of a judgment in favour of the respondent in the sum of $2,081,309.
By Notice of Motion dated 26 August 2009, the respondent has sought orders that the hearing of the appeal be expedited and that the appellants pay $50,000 into Court as security for the respondent’s costs of the appeal.
The proceedings before the primary judge, Ward J, related to a joint venture between the parties for the development of two parcels of land at Kitchener, New South Wales. Her Honour found that the respondent was entitled to loss of bargain damages following upon wrongful repudiation of the joint venture agreement by the appellant.
I turn now to the various orders sought.
Stay of the Judgment Below
The arrangements concerning the land intended to be developed were complicated. It is sufficient for present purposes to note that the appellants caused the lands to come under the control of a company named JPG 58 Pty Ltd (“JPG”) and that the primary…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Batterham v Makeig

Details

AGLC: Batterham v Makeig [2009] NSWCA 295
Case: [2009] NSWCA 295
Decision Date: 18 September 2009

CaseChat Overview and Summary

The case of *Batterham v Makeig* concerned an application by the appellants for a stay of a judgment and orders made by Ward J on 7 May 2009, pending the determination of their appeal. The dispute involved complex arrangements concerning land intended for development, under which the first appellant had received substantial monthly payments from a company named JPG 58 Pty Ltd. The respondent, who was elderly and in a precarious financial position, relied on the judgment amount for his income.

The primary legal issues before Macfarlan JA were whether the appellants had established the necessary preconditions for a stay of the judgment, namely, that the appeal raised serious issues for determination and that there was a real risk of prejudice if a stay was not granted, which would not be redressed by a successful appeal. If these preconditions were met, the court was then required to consider the balance of convenience. The appellants also foreshadowed an intention to seek leave to adduce fresh evidence regarding the rezoning of the subject land, which they asserted contradicted a basis of the primary judge's decision.

Macfarlan JA applied the principles outlined in *Kalifair Pty Ltd v Digi-Tech (Aust) Ltd*, requiring the appellant to demonstrate serious issues on appeal and a real risk of irrecoverable prejudice. While acknowledging the appellants' assertion that the appeal would be rendered abortive without a stay, the court noted the respondent's advanced age and dire financial circumstances, including significant outstanding legal costs and limited income. The court considered the appellants' ability to make monthly payments of $16,666.66, as stated in an affidavit, and concluded that a stay was warranted, but on strict conditions to mitigate prejudice to the respondent. The court also ordered that the hearing of the appeal be expedited due to the respondent's age and financial position.

The court ordered that the judgment and orders of Ward J be stayed until the determination of the appeal, conditional upon the appellants paying $10,000 on or before the first day of each month to the respondent, with a specific payment date in October 2009. Liberty was granted to the appellants to apply for a variation of this order on three days' notice, and the hearing of the appeal was expedited.

Orders

Orders of the court

(1) Order that the judgment given and orders made by Ward J on 7 May 2009 be stayed until the determination of the appeal in this Court, on condition that the appellants pay to the respondent, or as he may direct, in satisfaction of the judgment the sum of $10,000 on or before the first day of each month commencing between the present date and the date upon which the appeal is determined (save that in respect of the month of October 2009, the payment is to be made by the fifteenth day of the month).

(2) Grant liberty to the appellants to apply on three days notice to the respondent for a variation of Order (1) above.

(3) Order that the hearing of the appeal be expedited.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The respondent’s age, his financial position and my view that to a very substantial extent the judgment obtained by the respondent at first instance should be stayed point strongly to a need for expedition of the appeal.Fresh Evidence The appellants foreshadowed that they intend to seek leave to adduce fresh evidence on the appeal, being evidence that the subject land has not yet been rezoned. They assert that this contradicts a basis upon which the primary judge proceeded, namely, that rezoning was imminent. The admissibility of this evidence on appeal will be strongly contested by the respondent. However, the evidence foreshadowed is of a limited nature and argument as to its admission should be able to be dealt with within the confines of the hearing time which has been estimated. The appellants indicated that they would be able to file a Notice of Motion seeking leave to adduce that evidence, together with an affidavit in support, prior to the first return date of the appeal. As rule 51.51 already provides for this to be done, I will not make any directions to this effect.Orders The orders I make are as follows:(1)Order that the judgment given and orders made by Ward J on 7 May 2009 be stayed until the determination of the appeal in this Court, on condition that the appellants pay to the respondent, or as he may direct, in satisfaction of the judgment the sum of $10,000 on or before the first day of each month commencing between the present date and the date upon which the appeal is determined (save that in respect of the month of October 2009, the payment is to be made by the fifteenth day of the month).(2)Grant liberty to the appellants to apply on three days notice to the respondent for a variation of Order (1) above.(3) Order that the hearing of the appeal be expedited. I will deal in a separate judgment with the respondent’s application for security for costs and with the costs of the two motions.**********

Decision

Reasons for decision

I turn now to the various orders sought.Stay of the Judgment Below The arrangements concerning the land intended to be developed were complicated. It is sufficient for present purposes to note that the appellants caused the lands to come under the control of a company named JPG 58 Pty Ltd (“JPG”) and that the primary judge found that under the arrangements they had with JPG, the first appellant had thus far received some $900,000. In his affidavit read before me, the first appellant said that JPG had an obligation to pay him monthly amounts of $16,666.66. He said in his affidavit that he had had no discussions with JPG “in recent times” and believed that monthly payments would continue to be made. Some doubt is thrown upon the likelihood of these payments being made by a letter dated 27 August 2009 from the solicitors for JPG to the solicitors for the respondent. However, the first appellant’s statement was made in his affidavit sworn on 4 September 2009 and was relevantly against his interests on the present Notices of Motion because it indicates the availability to him of significant funds on a monthly basis. In these circumstances, I consider that I should proceed upon the assumption that it is likely that the payments will continue. The first appellant (who it can be assumed speaks for himself and the second appellant) gave evidence that apart from what he receives by these monthly payments he will not have the resources to satisfy the judgment given below until the sale of the subject property which he says is “unlikely to be until late 2012 at the earliest”. In a matter of weeks, the respondent will be 81 years of age. He and his partner have no source of income other than their expected receipt of the judgment amount and the aged pension which has recently been approved and will bring them $478.90 per fortnight. Their monthly expenses comprise a $2,000 mortgage payment to National Australia Bank and living expenses of $1,200. They have been funding their living expenses by drawing on an overdraft facility of $435,800. This is presently drawn to $422,600. They have no assets other than a residence which the respondent says is valued at $850,000 but is subject to mortgages of $550,000. The respondent has incurred legal costs in respect of the proceedings in excess of $270,000, of which $150,000 is still outstanding. He has been advised that the appeal will cost him a further $50,000. The proper approach to the grant of a stay was described in Kalifair Pty Ltd v Digi-Tech (Aust) Ltd [2002] NSWCA 383; (2002) 55 NSWLR 737 as follows:“The appellant must show that the appeal raises serious issues for the determination of the appellate court, and that there is a real risk that he will suffer prejudice or damage if a stay is not granted, which will not be redressed by a successful appeal. This requirement will be satisfied if the appeal would be rendered abortive or nugatory unless a stay is granted. If these pre-conditions are established the Court will then consider the balance of convenience” (at [15])

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.