Burnitt & Anor v Paradise Resort

[2006] QCA 167

COURT OF APPEAL
JERRARD JA

CA No 447 of 2006

DC no 1721 of 2004

PETER RAYMOND BURNITT and              (respondents/ 
TRACEY MAREE BURNITT                  respondents/plaintiffs)

and

PACIFIC PARADISE RESORT PTY LTD        (applicant/           
(ACN 098 002 763)  appellant/defendant)

BRISBANE

..DATE 24/05/2006

JUDGMENT

MR D QUAYLE (instructed by Dibbs Abbott Stillman) for the applicant

MR G McFARLAND (instructed by Simmonds Crowley and Galvin) for the respondents

JERRARD JA:  This matter is the hearing of an application filed on the 22 May 2006 seeking an order staying the execution of a judgment of the District Court dated 21 December 2005 in respect of which the formal order of the Court was not made until 12 May 2006.

As it happens the parties are in the happy position that the appeal is actually listed for hearing on 19 July 2006 and accordingly the application for the stay is made within two months of the date of hearing of the appeal.  The respondent to the stay application, who were the successful plaintiffs at the trial, do not suggest that the applicant for the stay, who was the unsuccessful defendant at the trial, has in any sense, been responsible for deliberate delay in the preparation of the formal order of the Court not taken out until mid May of this year.  It follows that the balance of convenience favours the granting of a stay simply because the Court of Appeal will hear within two months the appeal from a judgment which came into effect on 12 May 2006 and the application for a stay in respect of that order was promptly made.

The affidavit material relied upon by the applicant for the stay shows that the applicant asked for undertakings from the successful plaintiffs that they would not execute the order

and dispose of the property the subject of the action until

after the appeal outcome was known.  That undertaking has not

been offered and the applicants for the stay are anxious that

the property, which is a unit, not become unrecoverable by

them should they succeed on the appeal.  That leads me to a

consideration of the actual merits of the appeal.

After having heard counsel for the applicant I am satisfied that there is an argument to present, although I say nothing about its prospects of success.  Because I am persuaded that the applicant does have an argument and because the respondents to the appeal have declined to give an undertaking that they will not dispose of the unit if the judgment is executed and they obtain title to it, I am persuaded that it is appropriate to ensure that the applicant is not deprived of the fruits of a successful appeal namely retention of this unit whose price appears to be increasing in value.

Accordingly, I order that execution of the judgment of
McGill SC DCJ dated 21 December 2005 and the consequent order by His Honour of 12 May 2006 in the proceedings number 1721 of 2004 in respect of property described as Lot 78 on survey plan 109960 in the county of Canning, Parish of Maroochydore, be stayed until determination of the Appeal Number 447 of 2006.  I further order that that stay is conditioned upon the applicant/appellant Pacific Paradise Resorts Pty Ltd

continuing promptly to prosecute its appeal.  I reserve the

costs of this application to the outcome of the appeal.

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