Bytan Pty Ltd v BB Australia Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0084

BYTAN PTY LTD	Applicant
	v
BB AUSTRALIA PTY LTD	Respondent

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JUDGES:	OSBORN JA and CAVANOUGH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 May 2012
DATE OF JUDGMENT:	10 May 2012
MEDIUM NEUTRAL CITATION:	[2012] VSCA 116
JUDGMENT APPEALED FROM	BB Australia Pty Ltd v Bytan Pty Ltd and Ors [2012] VSC 171 (Pagone J)

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PRACTICE AND PROCEDURE – Application for stay of execution pending appeal – Whether special or exceptional circumstances – Real risk that appeal would be rendered nugatory – Stay granted on conditions.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D J Christie	Marque Lawyers
For the Respondent	Mr R Harris	A’Beckett Lawyers

OSBORN JA:

1. This appeal arises out of a dispute between a franchisor and franchisee with respect to their rights following the termination of a franchise agreement with respect to a Blockbuster video store located at Turramurra in New South Wales. 

1. The appellant seeks a stay of the trial judge's order that the appellant close the video store commencing from 11 May 2012, being Order C referred to in para 17 of the judgment of Pagone J of 4 May 2012.[1] 

   [1][2012] VSC 171.

1. The purpose of the closure, as the judge made clear, is to facilitate the purchase by the first respondent of the assets used in the store pursuant to the terms of the franchise agreement. 

1. The principles governing the grant of a stay upon appeal are well understood and were recently restated in David Neate and Tara Farm Pty Ltd v Thoroughbred International Marketing Pty Ltd[2] by Mandie JA and Cavanough AJA.  Most relevantly they are: 

   [2][2012] VSCA 65, [5]-[8].

(a)       the power to stay is discretionary, with the onus of demonstrating that a stay is justified resting upon the moving party;

(b)      the power to order a stay is to be exercised only where special or exceptional circumstances exist;

(c)       such special or exceptional circumstances will exist where there is a real risk that the appeal, if successful, would be rendered nugatory;

(d)      special circumstances will exist where, for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to its former position if the judgment against it is executed;

(e)       even in such circumstances, however, the grant of a stay remains discretionary. 

1. In Break Fast Investments Pty Ltd v PCH Melbourne Pty Ltd,[3] Maxwell P made this observation: 

As to the contention by [the respondent] that the appeal is of little merit, that is, of course, an argument which can be made against a stay, but it is only ever likely to succeed at an interlocutory stage if there is something palpably weak about the grounds or if they are obviously without substance.[4]

[3][2007] VSCA 118.

[4]Ibid, [14].

1. It is submitted that it is seriously arguable that Pagone J's reasons for the order in issue were flawed…