Buckworth v Gladio Pty Ltd
[2016] NSWCA 104
•11 May 2016
|
New South Wales |
Case Name: | Buckworth v Gladio Pty Ltd |
Medium Neutral Citation: | [2016] NSWCA 104 |
Hearing Date(s): | 9 May 2016 |
Decision Date: | 11 May 2016 |
Before: | Meagher JA |
Decision: | 1. Appellant/applicant’s notice of motion filed 6 May 2016 dismissed. |
Catchwords: | PROCEDURE – application for stay of execution of primary judgment until determination of proceedings in High Court – whether substantial prospect of success in special leave application – where question in appeal is one of fact, without general application and raises no question of principle – stay refused |
Cases Cited: | Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; 161 CLR 681 |
Category: | Procedural and other rulings |
Parties: | Virginia Louise Buckworth (Applicant) |
Representation: | Counsel: |
File Number(s): | 2015/247102 |
Decision under appeal: |
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
JUDGMENT
On 23 March 2016 the appeal in this proceeding was dismissed (Buckworth v Gladio Pty Ltd [2016] NSWCA 54). Ms Buckworth (the applicant) has filed an application for special leave to appeal to the High Court from that decision.
By her notice of motion filed 6 May 2016, the applicant seeks an order that a stay granted by Emmett JA on 31 August 2015 with respect to the enforcement of the primary judgment be extended until determination of her proceedings in the High Court. As a condition of that stay, the applicant paid an amount of $162,221 into an account of the first respondent’s solicitors. Because the stay order made by Emmett JA was “until the determination of the appellant’s appeal” and that has occurred, her application is to be treated as being for a further stay order.
In Rinehart v Welker [2012] NSWCA 1; 83 NSWLR 347, this Court held (at [48]) that in considering applications to stay a judgment or order which is the subject of an application for leave to appeal to the High Court, the approach to be adopted is that stated by Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; 161 CLR 681. In that case, his Honour observed that “exceptional circumstances must be shown” before the exercise of that power is warranted. Brennan J continued (at 685):
In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court's discretion. In each case when the Court is satisfied a stay is required to preserve the subject-matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.
In her summary of argument filed in the High Court, the applicant identifies two questions which are said to arise in the proposed appeal and to justify a grant of special leave. They are:
1. May a licence at will be terminated by the licensor at any time without cause?
2. May a court properly find that an event has occurred (for example that the directors of a company have passed a resolution) where there is no evidence that it did not occur nor any rational basis upon which to suppose that it did?
It is submitted that those questions arise in the following way. The applicant as vendor and the first respondent as purchaser entered into a contract for the sale of shares, ownership of which carried a right to exclusive occupancy of a company title home unit owned by the second respondent. The first respondent rescinded that contract on the basis, inter alia, that there had been a breach of cl 10(g), which contained a condition that the books of the company, required by law to be kept by it, be properly kept. The primary judge (McDougall J) held that the first respondent was entitled to rescind, including for breach of that condition, and to repayment of its 5% deposit, being an amount of $145,000. This Court (Bergin CJ in Eq, Beazley P agreeing and Emmett AJA dissenting) dismissed the appeal, concluding that the primary judge did not err in finding there had been a breach of cl 10(g). The correctness of that finding depended on whether an inference should be drawn that in late April or May 2009 the directors of the second respondent had made a decision that was required to be recorded in its books or records
In or before 2009 the applicant and a then co-owner had applied for consent to install air conditioning in the roof space above their home unit. On 31 March 2009 the directors of the second respondent resolved to consent to that occurring, reserving the right to withdraw that permission if there were any unresolvable “problems”, including with respect to noise. On 24 April 2009 the applicant and co-owner wrote a letter to the second respondent applying for its consent to use the roof space to install air conditioning and acknowledging their agreement to remove the equipment in the event the company decided to use the roof space for any purpose. In response to that letter the second respondent consented to the lodging of the necessary development application.
The primary judge found that the directors had made a decision after receipt of the 24 April 2009 letter to accept its terms, a decision which was of a kind required to be minuted. This finding was challenged by ground of appeal 4. In this Court, the majority upheld the conclusion of the primary judge. In doing so, their Honours considered that the evidence supporting that conclusion also included the evidence of a director, Ms Roylance, and the terms of a later resolution of the directors made on 28 October 2013: [2016] NSWCA 54 at [121]-[122], [127].
Emmett AJA’s dissent makes plain that the question before this Court was whether the evidence supported the inference drawn by the primary judge:
[174] I do not consider that a comparison between the terms of the resolution of 31 March 2009 and the terms of the letter of 24 April 2009 supports the inference that there must have been further communication leading to a decision of the directors of a kind that was required to be recorded in the books and records of [the second respondent]. Such a comparison does not support the characterisation of the terms of the letter as going well beyond what was suggested by the resolution, as the primary judge held.
The argument in support of the application for leave contends that the approach of the majority involved error because on a correct legal analysis of the position following the resolution of 31 March 2009, the licence granted or to be granted was a licence at will, revocable at any time; the proposal in the letter of 24 April 2009 did not alter, or purport to alter, that position; and therefore it was unnecessary for the second respondent to record a decision or pass a resolution with respect to that proposal. This argument appears to assume that the second respondent and its directors were aware and appreciated the significance of that being the legal position following the 31 March 2009 resolution and acted accordingly. Neither the reasoning of the primary judge nor that of the judgments in this Court suggests that was so.
In my view the applicant’s prospects of success in her application for special leave are not substantial in the sense that there is a significant likelihood that leave will be granted. The written argument does not identify any obvious error in the reasoning of the majority. Nor does it seek to support the reasoning or approach of the dissenting judgment of Emmett AJA. Neither of the questions in [4] above arises in the terms formulated. The issue is one of fact, namely whether the evidence justified the inference drawn by the primary judge. It involves no question of principle and is not of general application.
This conclusion makes it unnecessary to consider whether the grant of a stay is necessary to preserve the subject matter of the litigation, or to address the other matters referred to in the extract in [3] above.
Accordingly, I make the following orders:
1. Appellant/applicant’s notice of motion filed 6 May 2016 dismissed.
2. Applicant pay first respondent’s costs of the motion.
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Amendments
13 May 2016 - [1] citation added
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