Edmunds & Ors v Pickering & Ors (No 7) No. Scgrg-88-2452

[2000] SASC 393

EDMUNDS AND ORS V PICKERING AND ORS (NO. 7)

[2000] SASC 393

Civil (Ex Tempore)

1................ LANDER J....... This is a second application by the defendants for a stay of orders made by me on 10 August 2000. On this occasion the defendants, apart from the fifth defendant, seek a stay of paragraphs 4, 5 and 6 of the orders made by me on 10 August 2000, pending a final determination by the Full Court of an appeal instituted by the defendants on 6 September 2000, and further, “that any order, intermediate act or proceeding which may be instituted by the plaintiffs or either of them in furtherance, pursuance, enforcement or execution of the judgment be invalid until the final determination of the appeal.”

1. It is not necessary to set out once again the orders which I made on 10 August and the effect of those orders, which are contained in my reasons of 10 August, and my further reasons on 18 October 2000, when I refused a previous application by the defendants for a stay of those orders.

2. On this occasion the defendants seek an order upon two different bases to those which they relied upon on the previous application.  On this occasion the first ground upon which they seek the orders is that if the orders and judgment were allowed to be effected, there is a risk that Dadeeton Pty Ltd, which would be the recipient of the licence W17, might transfer the licence to another eligible third party.

3. Secondly, they seek this stay upon the basis that Dadeeton Pty Ltd may exploit the licence after 1 January 2001 and any of the proceeds of the exploitation of the licence would not be available to the defendants in the event that the defendants were successful on their appeal.

4. The plaintiffs again oppose the application.

5. On this occasion I asked Mr Walsh Q, who appeared for the plaintiffs, whether the plaintiffs and in particular Dadeeton Pty Ltd would be prepared to give any sort of undertaking in relation to the transfer of the licence to any third party pending the disposal of the appeal.  He indicated that his instructions were that his client, Dadeeton Pty Ltd, would undertake not to transfer the licence W17 to any other eligible third party pending the disposal of the appeal. That undertaking, which of course I would accept, would be enough to dispose of the first ground relied upon by the defendants.

6. As to the second ground I suggested that perhaps the parties could agree that the terms of my orders be carried out such that Dadeeton Pty Ltd receive the licence and, that it either agree to not to exploit the licence pending the disposal of the appeal or, that it be agreed that if it did exploit the licence pending the disposal of the appeal, the proceeds of the exploitation either be held in trust or be paid into court. It would be necessary, of course, if Dadeeton Pty Ltd was to receive the authority, that Smoothpool Nominees Pty Ltd first pay to the first defendant the sum of $514,544.  That is made necessary by paragraph 3 of my orders.  Upon payment of that sum Dadeeton Pty Ltd would be entitled then to receive the transfer of the authority to it. It would also be entitled upon payment of that sum to receive $1,099,351 from Mr Gregory Pickering and Greg Pickering Investments Pty Ltd and a lesser sum, which would discharge the other party’s indebtedness, from Silverglow Pty Ltd.

7. Ms Powell QC, who appeared on behalf of the defendants, said her client would be prepared to accept the $514,544.  He would, she said, in those circumstances, be prepared to transfer the authority but not to Dadeeton Pty Ltd, but to a unknown third party to be held in escrow upon terms to be agreed.  As well she said Mr Gregory Pickering would not pay the judgment sum of $1,099,351.  That would be for the plaintiffs to otherwise pursue him for that sum. She also said that if Dadeeton Pty Ltd was to exploit the authority during the period before the disposal of the appeal, it would have to be on terms similar to those which her client agreed to during the trial.

8. In my opinion, the offer made by the defendants is no offer at all.  It is not surprising in the circumstances that the plaintiffs rejected that offer. The plaintiffs are entitled if they pay $514,544 at least to the authority and probably to the judgment sum.

9. In my opinion, the defendants have not made out a case that there is a likelihood that if the defendants are successful on appeal, they will not be able to recover the proceeds of the exploitation of the authority, if in fact the authority is exploited between 1 January 2001 and the disposal of the appeal.

10. In those circumstances and because of the undertaking which otherwise would have been offered by the plaintiffs, which I have recorded, the application for a stay should be refused.

11. The application is dismissed.