Ian Rodda Pty Ltd v Rodda - [2015] SASCFC 146

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Permission to Appeal in Private)
IAN RODDA PTY LTD & ANOR v RODDA & ANOR
[2015] SASCFC 146
Judgment of The Full Court (ex tempore)
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Stanley)
1 October 2015
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS
The applicants sought a stay of execution of orders made by a Judge of this Court on 26 August 2015. The stay was sought pending an appeal to the Full Court. A single Judge of this court refused the application for a stay.
The applicants apply for permission to appeal the decision to refuse to grant a stay to the Full Court.
The applicants made a further fresh application for a stay of execution of the same orders of the 26 August 2015.
Held (The Court):
1. Permission to appeal is refused.
2. Application for a stay of execution of orders is refused.
Hackney Tavern Nominees Pty Ltd (1983) 33 SASR 590; Advanced Building Systems & Anor v Ramset Fasteners (Aust) Pty Ltd (1997) 145 ALR 121, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"stay of orders", "stay of execution of orders", "stay pending appeal", "appeal of application for stay"

IAN RODDA PTY LTD & ANOR v RODDA & ANOR
[2015] SASCFC 146
Full Court: Kourakis CJ, Vanstone and Stanley JJ
THE COURT:
Background

This is an application for permission to appeal against an order refusing a stay of execution on a judgment of this Court granting equitable relief to the Respondents over farming property of which the first Applicant is the registered proprietor. The second Applicant Ian Rodda is the father of the first Respondent Stuart Rodda.
In a judgment delivered on 1 July 2015 Nicholson J found that:
·over an 18 year period Ian Rodda repeatedly made representations to the Respondents regarding Stuart Rodda’s future ownership of the farming land and equipment;
·the Respondents reasonably relied on those representations to their detriment; and
·the Respondents were entitled to a proprietary remedy moulded so as to recognise in a just and proportionate manner their unfulfilled expectation as to a beneficial interest in the farming land and equipment.
By judgment delivered 26 August 2015, Nicholson J made orders (among others):
·declaring that the farming property known as Ocean Downs had been held in equity by the Respondents since 1 December 2012 and ordering that it be transferred to them within 28 days, together with payment of the net profits and rents from the use and exploitation of Ocean Downs (after all due allowances are made for the work and contributions of the defendants) since 1 December 2012;
·that the unpaid trust distributions in the amount of $780,000 owing to the Respondents be paid to the Respondents (plus interest from the date of demand in April 2014); and
·that an additional $1.5 million in equitable compensation was due to the Respondents as of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] SASCFC 146
Decision Date: 1 October 2015

CaseChat Overview and Summary

The applicants, Ian Rodda Pty Ltd, sought a stay of proceedings in the Supreme Court of South Australia pending the determination of their appeal. The dispute concerned the potential inability to recover equitable compensation awarded to the respondents should the appeal succeed, given the respondents' financial state. The applicants contended that there was a real risk they would not be restored to their former position if the judgment was executed and the appeal was subsequently allowed.

The court was required to determine whether to grant a stay of proceedings. This involved considering the applicants' primary submission regarding the risk of non-recovery of equitable compensation and assessing whether the balance of convenience favoured granting a stay. The court also had to consider the adequacy of existing orders made by Kelly J, which restrained the respondents from transferring, selling, disposing of, or encumbering the Ocean Downs land.

The Full Court of the Supreme Court of South Australia, comprising Kourakis CJ, Vanstone and Stanley JJ, found that the difference in the parties' formulations of the test for a stay was not material to the exercise of discretion by Kelly J. They concluded that Kelly J had adequately taken into account the potential prejudice to the applicants should the appeal succeed and the equitable compensation paid might not be recoverable. The court held that the balance of convenience strongly favoured the transfer of the Ocean Downs land to the respondents, finding no sufficient reason to doubt their competence to manage the land and crops. The existing injunction was deemed sufficient to protect the applicants' interests in the land.

The court refused the application for permission to appeal and dismissed the fresh application for a stay, finding that the further material relied upon did not warrant a fresh consideration of the matter. The Full Court concluded that, despite the prospects of success on appeal and the risk of non-recovery from other assets, the balance of convenience and the interests of justice favoured the orders made by Kelly J.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The Applicants’ primary submission on the merits of the application for the stay is that it is very likely that because of the Respondents’ financial state, money paid by way of equitable compensation pursuant to the judgment may not be recovered. They contend that there is a real risk that the Applicants will not be restored to their former position should the judgment be executed yet the appeal succeed. Decision In the circumstances of this case the difference between the competing formulations of the test for a stay put by the parties is not material and did not have any material affect on the exercise of discretion by Kelly J. On a consideration of the reasons of Kelly J as a whole, it is plain that her Honour took into account the possible prejudice to the Applicants that should the appeal be allowed they might not recover the equitable compensation paid by them. So much is clear when the impugned passages in paragraph [14] of the reasons of Kelly J are considered against her Honour’s discussion of the risk of prejudice in paragraphs [9] and [10]. The balance of convenience strongly favours the transfer of the Ocean Downs and to the Respondents. Disputation over the proper management of the crops on that land has continued. The evidence does not disclose sufficient reason to doubt the competence and capacity of the Respondents to properly manage the land and harvest the crops. It is best that the Respondents be left to maximise the return from the crops on the Ocean Downs and without interference. Although not granting a stay Kelly J made an order protecting the position of the applicants with respect to the transfer of the Ocean Downs and in these terms:Until the hearing and determination of the appeal the respondents be restrained and an injunction is hereby granted restraining them from transferring, selling, disposing of or encumbering the whole or any part of the Ocean Downs Land (as defined in paragraph 3 of the orders made by Nicholson J on 26 August 2015). That order sufficiently protects the Applicants’ interest in the Ocean Downs land. It can be accepted that there is some risk that should the Applicants succeed entirely on appeal, they would not recover the equitable compensation paid from the other assets of the Respondents. However, no error in the balancing of the relevant considerations has been shown. Moreover, we have come to the same conclusion. Having regard to the prospects of success on appeal generally, and in particular such prospects as there are, of a complete reversal of the decision of Nicholson J, and the risk that there may not be full recovery from other assets of the Respondents, we nonetheless conclude that the balance of convenience and the interests of justice favour the orders made by Kelly J.Orders The application for permission to appeal is refused. The Applicants have also made a fresh application for a stay. The further material on which they rely does not warrant a fresh consideration of the matter. The further application is dismissed.

Ratio Decidendi

Legal Principle Established

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