Batterham v Makeig

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.