Hamilton-Smith v Bernsteen Pty Ltd (in Liq) (No 3) - [2006] SASC 316

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
HAMILTON-SMITH v BERNSTEEN PTY LTD (IN LIQ) (NO 3)
[2006] SASC 316
Judgment of The Honourable Justice Layton
13 October 2006
PROCEDURE - JUDGMENTS AND ORDERS - ENFORCEMENT OF JUDGMENTS AND ORDERS - EXECUTION AGAINST THE PERSON
PROCEDURE - COSTS - RECOVERY OF COSTS
Application for a stay - Appellant sought stay of execution of allocaturs pending determination of a proceeding in the Magistrates Court and an application for special leave to appeal to the High Court - Whether stay of order should be granted - Whether jurisdiction to grant - Consideration of factors relevant to exercise of discretion to grant stay - Held: No proper basis for granting the application for a stay - application dismissed.
Alstom Power v Yukogawa Australia Pty Ltd (No 2) [2006] SASC 87; Duke Group Ltd (In Liq) v Pilmer [1999] SASC 373; Gerah Imports v The Duke Group Ltd (In Liq) (1994) 175 LSJS 177; Guss v Johnstone (2000) 171 ALR 598; Hamilton-Smith v Bernsteen Pty Ltd (In Liq) (2004) 89 SASR 87; Hamilton-Smith v Bernsteen Pty Ltd (In Liq) [2005] SASC 190; Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; Northern Australia Land & Agency Co Ltd v Le Poidevin Industries Pty Ltd (In Liq) (unreported, Supreme Court of South Australia, Lander J, 18 April 1996), considered.

HAMILTON-SMITH v BERNSTEEN PTY LTD (IN LIQ) (NO 3)
[2006] SASC 316
Application

LAYTON J: This is an application by the appellant, Ms Hamilton-Smith, by Notice for Specific Directions filed 12 May 2006, for a stay of execution of an Interim Allocatur issued against the appellant on 4 April 2005 in the sum of $1,903.20 and an allocatur issued against the appellant on 26 October 2005 in the sum of $9,288.60. The appellant seeks the stay pending the following matters:
·The final determination of the principal action in the Magistrates Court of South Australia;
·The final determination of an application for special leave to appeal to the High Court; and
·The taxation of a bill of costs in a Federal Magistrates Court matter involving the appellant and the respondent.
Both allocaturs relate to costs orders made by Anderson J on 22 July 2004, [1] who dismissed the appellant’s appeal from the Magistrates Court in relation to indemnity costs. In particular the appellant submitted that unless a stay is granted in accordance with the application sought, she was likely to be subject to a sequestration order in the Federal Court and that she would consequently be made bankrupt.
[1] Hamilton-Smith v Bernsteen Pty Ltd (In Liq) (2004) 89 SASR 87.
Following the argument which was heard on Friday 9 June 2006, I was informed that on 20 June 2006, seven working days later, that a sequestration order had already been made in the Federal Court and that an application made by the appellant in the Federal Court for a stay of that sequestration order was refused. I was also informed by letter from the respondent’s solicitors dated 22 June 2006, that pursuant to s 60(2) of the Bankruptcy Act (Cth), the trustee of the estate of the appellant would be deciding whether to pursue this application. In the absence of any discontinuance of this matter by the trustee in bankruptcy, I will now provide my decision on this application and reasons for my decision.
The history of the matter is convoluted and it is helpful to first summarise the relevant chronology. This chronology is extracted from voluminous material contained in the affidavits deposed by the appellant, Tanya Hamilton Smith sworn 12 May 2006 and the 16 exhibits attached thereto; and Tyneil Lynne Flaherty sworn 8 June 2006, and the 23 exhibits attached thereto. These affidavits were filed in support of the respective contentions of the parties.
The Magistrates Court proceedings
The appellant is the defendant in proceedings in the Magistrates Court of South Australia (“the Magistrates Court”), which in itself involves a saga.
On 6 August 2002, a claim was filed in Action No 10039 of 2002 for the sum of $27,723.39, being the amount allegedly owed by the defendant to the plaintiff (respondent in this application) for failing to pay for goods sold and delivered pursuant to an agreement, plus relevant court costs and fees.
On 27 August 2002, a defence and counterclaim was filed. On 2 January 2003, an amended defence and counterclaim was filed. The counterclaim asserted that the appellant was entitled to an unspecified amount of damages for alleged breaches of contract and also misleading and deceptive conduct. The appellant alleged that the liquidator of the respondent company should have stopped the advertising of stock by an unrelated third company. That advertising apparently indicated that stock had been acquired from the appellant as “liquidated stock” formerly owned by the appellant.
Thereafter the normal listing conferences and orders were followed. However, the appellant failed to comply with the rules of discovery and there were significant interlocutory issues.
On 23 April 2003, the defendant did not appear at a hearing and the learned Magistrate made an order in default of the appellant’s appearance and also in default of the discovery orders previously made not being complied with. The defence and counterclaim were struck out and judgment was entered for the plaintiff for $30,518.00 (being the amount claimed of $27,723.39 plus costs and interest of $1,449.45). The learned Magistrate treated this as a liquidated amount.
On 11 June 2003, a series of events began involving an application by the appellant to set the default judgment aside. On 5 December 2003, the learned Magistrate set aside the default judgment on the basis that there was an arguable defence, and that there was a reasonable excuse for the defendant’s failure to comply with the orders for discovery. However, his Honour rejected the appellant’s argument that the judgment had been irregularly obtained and refused an application for security for costs. He reserved the question of costs generally.
On 25 March 2004, the learned Magistrate ordered that the appellant pay the costs incurred by and incidental to the preparation of the affidavit of the solicitor for the plaintiff on an indemnity basis, and further ordered that the appellant pay 80 per cent of the plaintiff’s costs of and incidental to the interlocutory application, to be taxed on a party and party basis based upon 90 per cent of the Supreme Court scale. His Honour did not order that the further defence of those proceedings was conditional upon the payment of costs.
In those reasons, the learned Magistrate described it as “an unusual interlocutory application”. He referred to detailed oral and written submissions put before him and that there was concern as to whether the appellant had been selective about certain material. The learned Magistrate adverted to previous hearings dealt with in his earlier reasons. He concluded that the respondent’s opposition to the appellant’s application for setting aside the default judgment was neither capricious nor unreasonable. The learned Magistrate found that the respondent sought to confine the opposition to discrete issues, whereas the appellant addressed at large, resulting in argument consuming far more time than was necessary. Further, his Honour held that the respondent gave reasonable warning to the appellant of its intention to sign judgment.
On 8 April 2004, the appellant appealed to the Supreme Court from that interlocutory order for costs. This appeal began the proceedings in this Court.
On 31 March 2005, the Magistrates Court issued an interim allocatur in the sum of $2,215.37 by the agreement of the parties, for costs of the respondent in defending the successful application to have the default judgment against her set aside. This was composed of an amount of $1,962.72 plus costs of $200.00 and interest of $52.65.
The trial in the Magistrates Court, which had not been stayed pending the outcome of the appeal on costs, was adjourned to 16 May 2005. There were preliminary issues concerning the provision of expert reports by the appellant in support of her claim for damages. There was a delay in the provision of these reports. The appellant then made an application for security for costs and a stay of the final consent orders for costs. That process resulted in a further adjournment of the trial which has not yet been heard. The appellant submits that there should be a stay of the allocatur pending the final determination of the trial in the Magistrates Court.
The appeal to the Supreme Court
The appeal from the learned Magistrate in relation to the order for costs of 25 March 2004 was heard by Anderson J on 17 June 2004, and judgment was delivered on 22 July 2004. His Honour traversed the reasons of the learned Magistrate and concluded that there was no error in the exercise of the learned Magistrate’s discretion.
In particular his Honour concluded: [2]
Coming to the actual decision, which relates to the way in which costs were finally reasoned by the learned Magistrate, his Honour having had the conduct of the matter throughout and having seen the developments at each stage, the nuances of each party’s strategy and the way in which they were approaching the matter, was in a very strong position to form an opinion in the exercise of his discretion as to what was fair and reasonable on the question of costs. He did just that. He formed the view that a very large amount of unnecessary time was occupied in trifling and unhelpful argument from the appellant. He formed the view that had the appellant appreciated that the respondent was attempting to argue the matter on a very limited basis only, it would not have been necessary to waste the time and costs which were wasted in what I have already described as a saga…
[2] Hamilton-Smith v Bernsteen Pty Ltd (In Liq) (2004) 89 SASR 87.
His Honour dismissed the appeal and ordered that the appellant pay the respondent’s costs and certified them fit for counsel.
On 5 August 2004, the appellant filed an application seeking leave to appeal against the decision of Anderson J. On 17 August 2004, Anderson J refused the appellant leave to appeal to the Full Court of the Supreme Court. On 31 August 2004, the appellant filed a Notice for Specific Directions seeking leave from the Full Court to appeal against the judgment of Anderson J.
On 4 April 2005, a consent interim allocatur was issued in the Supreme Court in the sum of $1,903.20, being costs to be paid by the appellant in relation to the dismissal of the appeal before Anderson J. This is one of the allocaturs which the appellant seeks to have stayed.
On 27 April 2005, the leave to appeal came on for hearing before the Full Court. The Full Court refused leave on 26 May 2005.[3] The Court in refusing to grant leave to appeal gave detailed reasons. Part of these reasons are relevant to note as they give the flavour of the Full Court in its approach to the appellant’s case and to the lack of merit of the appeal:
It is settled that an appellate court will be reluctant to interfere with decisions of primary Judges relating to matters of practice and procedure that do not determine substantive rights of the parties… A disposal of cases could be delayed indeterminably and costs heaped up indefinitely. A litigant with a deep purse or a litigious disposition could at will, in effect, transfer all exercises of discretion in interlocutory applications from a Judge in chambers to a court of appeal.
In the present case, it would appear that the defendant is of a litigious disposition. This is evidently the view that the magistrate took when describing the unusual nature of the interlocutory application. Similarly, it was the magistrate’s view when making the observation that the plaintiff attempted to confine the application to discrete issues, but that the defendant wished to argue the matter at large support this view. The learned Judge hearing the appeal appears to be of the same view, as is evident from the paragraphs of his judgment referred to above.
The defendant’s litigious disposition can also be discerned in the further proceedings in the Magistrates Court and this Court. This, for example, is evident from the defendant’s attitude towards the taxation of costs. The defendant objected to the short form bill. On the hearing of this application, despite this Court’s repeated requests that the issues of principle be identified, counsel sought to agitate the matter as though it was a hearing of an appeal rather than an application for leave. This conduct tends to confirm that the defendant, or those advising her, are of a litigious disposition and wish to argue every point at every stage of the process.
The fact that the defendant wishes to litigate every aspect of the proceedings whenever the opportunity arises is further demonstrated by: the defendant’s ongoing non-payment of the agreed interim allocaturs; the defendant’s threatening of applications for a stay; the defendant’s rejection of the advice of court officers about the correct procedures to be followed; and the approach of counsel for the defendant on the hearing of this application. The remarks of Jordan CJ, in In re Will of Gilbert, are most apposite.
Unconscionable delay has occurred in the prosecution of this application. More than nine months has passed since the learned Judge’s decision…The defendant has not offered a satisfactory explanation for the delay.
…
To obtain leave to appeal against an order for costs would in the ordinary course require an important question of principle requiring resolution to be identified. In the present proceedings, no point of general principle has been demonstrated. General rules that govern the setting aside of default judgments are well established. The complaint in this case does not relate to general principle, but rather the application of settled principle to particular facts. No point of general principle arises.
The justice of the case does not require a grant of leave. The defendant has aired her complaints fully, and she has debated them both before the magistrate and then on appeal before a Judge of this Court. There is no reason to doubt the correctness of the order for costs made by the magistrate.
[3] Hamilton-Smith v Bernsteen Pty Ltd (In Liq) [2005] SASC 190.
On 26 October 2005, the balance of the costs in relation to the Supreme Court hearings were taxed and an interim allocatur was entered by consent for $9,288.60. This is the second allocatur sought to be stayed.
The application for special leave to appeal to the High Court
On 15 June 2005, the appellant filed an application for special leave to appeal to the High Court from the decision of the Full Court refusing leave. Particular concern is raised by the appellant as to the reasons of the Full Court in characterising the appellant as having a “litigious disposition”. The affidavit of Tanya Hamilton-Smith, sworn 12 May 2006 in support of this application for a stay, deposes that the appellant’s application for special leave was listed for hearing on Friday 10 February 2006, but that this hearing date was vacated. The appellant also deposes that she has not as yet received any notification from the High Court Registry as to when the application will be re-listed.
The appellant seeks that the allocaturs be stayed pending the final determination of that application for special leave to appeal to the High Court.
The Federal Magistrates Court proceedings
In addition to the above proceedings, the following actions have occurred in the Federal Court.
Action ADG 94 of 2005
On 7 April 2005, a Bankruptcy Notice was issued by the respondent in respect of the appellant in the amount of $4,118.57, being Action ADG 94 of 2005. This sum was founded upon two interim allocaturs referred to above, namely one issued in the Supreme Court on 4 April 2005 for $1,903.20 (being the subject of this stay application) and the other issued in the Magistrates Court on 31 March 2005 for $2,215.37.
On 4 May 2005, the appellant filed an out of time application to set aside the Bankruptcy Notice and to extend the time for compliance with it. This application was heard before Federal Registrar Christie. Affidavit material was filed and submissions were made to the effect that the extension of time was necessary to enable the appellant to have the High Court consider her special leave to appeal application. Further, it was submitted that the Bankruptcy Notice should be set aside because the effect of an alleged counterclaim in the Magistrates Court Action No 10039 of 2002 exceeded any monies owed for the costs set out in the Bankruptcy Notice.
The Federal Registrar held that the Bankruptcy Notice should be set aside and that the respondent pay the appellant’s costs to be taxed or agreed. Those costs have not been taxed and the appellant claims that she is entitled to set off those costs .
ADG 237 of 2005
In October 2005, in an unrelated action, an unrelated person, Heidi George, commenced bankruptcy proceedings against the appellant in Action ADG 237 of 2005. Ms George claimed that the appellant owed her an amount of $4,079.80 plus interest in respect of a judgment debt in the Magistrates Court in Action No 729 of 2002.
On 1 November 2005, the appellant entered an appearance in which she asserted that the respondent in these proceedings was one of her creditors and owed her moneys in respect of both the Magistrates Court Action No 10039 of 2002 and in the Supreme Court action.
The respondent joined this Federal Court action as a supporting creditor, claiming inter alia the amounts of the allocaturs now sought to be stayed by the appellant.
In this Federal Court action, Ms George pressed for a sequestration order, whilst the appellant argued that the petition should be dismissed, or in the alternative that the application for a sequestration order should be adjourned.
On 28 February 2006, Federal Registrar Christie decided to grant an adjournment to allow the appellant to progress her counterclaim against the respondent in the Magistrates Court. This decision was subsequently reviewed by Federal Magistrate Raphael who decided on 21 April 2006 to grant an adjournment of the hearing for a sequestration order until 20 June 2006, on the understanding that Magistrates Court Action No 10039 of 2002 would be heard on 13 June 2006.
Bases for the application of a stay
As previously indicated, the appellant submitted that unless a stay was granted in accordance with the application sought, Registrar Christie in AGD 237 of 2005 would be likely to make a sequestration order, in which case the appellant would be bankrupted. This situation has since changed because a sequestration order has been made.
The appellant’s other main argument centred around the submission that the costs orders should be stayed pending the final determination of the principal proceeding in the Magistrates Court, and the determination of a pending application for special leave to appeal to the High Court.
Two arguments were addressed: In relation to the first, reliance was placed on the case of Alstom Power v Yokogawa Australia Pty Ltd (No 2)[4] (“Alstom”), for the proposition that as a general rule, costs should not be enforced until the finalisation of a particular action. Counsel for the appellant argued that since the Magistrates Court action had not yet been determined, and the subsequent appeals in the Supreme Court were the subject of special leave to the High Court, no action should be taken with regard to the costs orders until those matters had been determined.
[4] [2006] SASC 87.

It seems to me that this argument is a fundamentally flawed. Debelle J in Alstom was discussing sub-rule (7) of r 101.01 of the Rules of this Court. This sub-rule is concerned with orders for costs in interlocutory proceedings and provides as follows: [5]
(7) An order for costs of an interlocutory proceeding shall not, unless the Court otherwise orders, entitle a party to have a bill of costs taxed until the principal proceeding in which the interlocutory order was made is concluded or further order.
[5] Supreme Court Rules 1987 (SA) r101.01(7).
As Debelle J stated at [4]:
The rule is expressed in terms which make it clear that the general rule is that a taxation of costs will occur at the conclusion of the proceedings, unless the court makes an order to the contrary.
In this case, the action in the Supreme Court which has resulted in these two allocaturs, is an appeal in its own right which has been finally determined by this Court. The fact that the appeal arises from an interlocutory order for costs made in the Magistrates Court, which did not determine the merits of the action, does not render the appeal to the Supreme Court an interlocutory proceeding. Therefore, since the appeal giving rise to the allocaturs is not an interlocutory procedure, but rather a principal proceeding, the general rule does not apply. If however, contrary to my interpretation, the allocaturs could be characterised as costs in relation to an interlocutory proceeding, then they appear to fall within the factors which have been identified as justifying a departure from the general rule. These exceptions are discussed by Debelle J in Alstom at [8] and [10]; namely, if the interlocutory proceeding represents the determination of a separately identifiable matter which can be viewed as a discrete aspect of the action and a considerable period of time would elapse before the action would be decided. Either way, there is in my view no basis for a stay awaiting the final determination of the Magistrates Court proceeding.
I now turn to consider the second argument, which concerns whether the application for special leave to appeal to the High Court is of itself, a basis for granting a stay.
The criteria for the grant of a stay
Rule 95.17 of the Supreme Court Rules provides as follows:
An application for a stay of execution or proceedings, or for any interlocutory injunction to preserve the subject matter of the proceedings, pending the hearing of any application or proposed application for leave to appeal to the High Court of Australia and the determination of any such appeal may be made:
(a) ore tenens to the Full Court which made the order from which leave to appeal will be sought…
(b) in any other case by an application to a single Judge in Chambers upon such notice to the other parties as the Judge shall require.
In Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd,[6] (“Jennings Constructions”) Brennan J held that:
A stay to preserve the subject-matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted…
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.[7]
[6] (1986) 161 CLR 681.
[7] (1986) 161 CLR 681, 684-5.
In Gerah Imports v The Duke Group Ltd (In Liq),[8] the Full Court of the Supreme Court considered an appeal against a stay pending special leave to appeal to the High Court, granted by a single Judge of the Supreme Court. King CJ said that: [9]
This court will interfere with an exercise of discretion only where it is shown that the judge exercising the discretion has acted upon a wrong principle or has made a clear error of fact or has had regard to extraneous or irrelevant circumstances or has failed to take into account relevant circumstances…In the present case the judge was required to weigh up the factors which are relevant to the exercise of the discretion as to whether to stay a judgment of this court pending an appeal to the High Court.
An important factor is the prospect of success of the application for leave to appeal to the High Court and any subsequent appeal. The test in relation to that matter has been framed in slightly different language by various judges of the High Court…At times it has been expressed as a requirement that there be a substantial prospect of success, or a not insubstantial prospect of success, or a reasonable prospect of success, or reasonable likelihood of success.
[8] (1994) 175 LSJS 177.
[9] (1994) 175 LSJS 177, 178.
In Northern Australia Land & Agency Co Ltd v Le Poidevin Industries Pty Ltd (In Liq),[10] (“Northern Australia Land”) Lander J in considering an application for a stay stated that:
A stay of execution would ordinarily be granted if it were necessary to preserve the subject matter of the appeal, and in circumstances where there were some prospects of the parties seeking a stay of execution succeeding in an application for special leave before the High Court.
It seems to me, however, in the circumstances of this case, the defendants can make out neither of those matters. An order for the payment of a money sum in costs is not likely to destroy or even interfere with the subject matter of the appeal if, in due course, the defendants were successful in obtaining special leave and on the appeal setting aside all of the orders as to costs, or even some of them. That would merely require that the plaintiffs repay those costs to the defendants, together with the appropriate interest, under the Supreme Court Rules. I think, therefore, that it cannot be said in this case that a stay is necessary to preserve the subject matter of the appeal.
[10] (unreported, Supreme Court of South Australia, Lander J, 18 April 1996).
It is apparent from the above authorities that a primary consideration in deciding whether exceptional circumstances exist for exercising the jurisdiction for a stay is whether the Court is satisfied that a stay is required to preserve “the subject matter of the litigation”. The jurisdiction is not enlivened unless this prerequisite is satisfied. [11]
[11] Duke Group Ltd (In Liq) v Pilmer [1999] SASC 373 [19].
As Lander J commented in Northern Australia Land, the payment of costs is not likely to destroy or even interfere with the subject matter of the appeal if in due course an appellant was successful in obtaining special leave. In this case, the total amount of the two allocaturs is not large and the appellant in her affidavit sworn on 12 May 2006, deposes in [21] to be “able to pay her debts as and when they fall due.” It is also to be noted that the appellant deposes in [27] to have already expended $80,000 in relation to her own legal costs and disbursements. Further, there is no suggestion in her affidavits that even if she was bankrupted she would be unable to work as a laser therapist - the occupation for which she deposes she is receiving $1,200 per week. It is to be noted that she had already been bankrupt before. [12] If no stay is granted and the appellant pays the costs to the respondent, in the event of the appellant being successful in relation to her special leave application and also on appeal to the High Court, she would be liable to be repaid the costs by the respondent. On this basis the jurisdiction for a stay does not appear to be enlivened.
[12] Exhibit TLF 20 to affidavit of Tyneil Lynne Flaherty.
Even if the jurisdiction is enlivened, the respondent argues that in applying the three factors referred to in the judgment of Brennan J in Jennings Constructions, [13] a stay should not be granted.
[13] (1986) 161 CLR 681.
First, it is submitted that the appellant has a very low prospect of success in any application for special leave. It was noted by Lander J in Northern Australia Land that “the defendants face the very formidable task of convincing the High Court that it ought to grant special leave in a matter which relates solely to an order for costs...”.[14] In my view the appellant does not have substantial prospects of success in her application for special leave to the High Court. It is well known that applications for special leave are matters which are statistically more likely to fail than succeed, and this is even more likely in respect to a discretionary costs matter.
[14] Northern Australia Land & Agency Co Ltd v Le Poidevin Industries Pty Ltd (In Liq) (unreported, Supreme Court of South Australia, Lander J, 18 April 1996).
I also note the High Court decision of Guss v Johnstone[15] in which an appeal was allowed on costs. That case concerned a decision of the Full Court of the Federal Court in which it had refrained from dealing with the merits of an argument before a single Judge of the Federal Court. This occurred in circumstances in which an act of bankruptcy had taken place, and the Full Court consequently decided that there was no utility in considering whether the appellant had a counter claim, set off or cross demand. The High Court held that the Full Court erred in failing to consider the argument on the merits.
[15] (2000) 171 ALR 598.
Secondly, the respondent argues that the applicant has failed to take necessary steps to seek a stay from the Court in which the appeal was pending. In that regard it is to be noted that the appellant seeks to stay the execution of two allocaturs dated 4 April 2005 and 26 October 2005, made in relation to costs orders made by Anderson J on 22 July 2004. No stay was sought before Anderson J when the matter was argued in July 2004, or before the Full Court in April 2005. Moreover, no stay was sought at the time of the filing of the application for special leave to appeal to the High Court in June 2005, or after the final allocatur in 2005. This application was made on 12 May 2006. Given these circumstances, it is my view that the second aspect of the exercise of discretion does not exist in this case.
The third element considered by Brennan J in Jennings Constructions [16] was whether the grant of the stay would cause loss to the respondent and where the balance of convenience lay. In this case the respondent liquidator is prevented from pursuing costs in a situation where it appears that the appellant has indeed, as noted by the Full Court of the Supreme Court, undertaken and been involved in a significant litigious process.
[16] (1986) 161 CLR 681.
Although the characterisation of the appellant as being litigious is an issue sought to be raised by her in proceedings before the High Court, this characterisation by the Full Court appears apposite. In addition, the appellant has inappropriately delayed taking stay proceedings in this Court. The appellant’s arguments are based on compendious material to which the respondent has been forced to respond. The same arguments are being run by the appellant in multiple jurisdictions, even in relation to an unrelated action.
The balance of convenience lies clearly with the respondent, who is entitled to be paid costs. Bearing in mind that the sequestration order has already been made, and applying the approach indicated by the case law, I consider that there is no proper basis for the application.
Further even if the sequestration order had not been made, application of the case law would lead me also to conclude that there is no proper basis for the application.
The application should be dismissed.