Ian Rodda Pty Ltd v Rodda - [2015] SASC 149

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
IAN RODDA PTY LTD & ANOR v RODDA & ANOR
[2015] SASC 149
Reasons for Decision of The Honourable Justice Kelly
24 September 2015
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS
The appellants seek a stay of execution of orders made by a Judge of this Court on 26 August 2015, pending an appeal to the Full Court. Among other things, those orders require the appellants to pay equitable compensation and pre-judgment interest to the respondents and to transfer their estate and interest in farming land to the respondents.
Whether the execution of the orders should be stayed pending the appeal.
Appellants’ application partially allowed but only in relation to those orders for which the stay sought is not opposed by respondents.
Held (otherwise dismissing the application):
1. The appellants will face a high hurdle in persuading an appeal court that the trial Judge has erred, however this does not militate against the grant of a stay.
2. The appellants have not established that they are at real risk of suffering prejudice of damage that could not be redressed if they are successful on appeal.
3. The balance of convenience does not favour the granting of a stay.
Landmark Operations Ltd v J Tiver Nominees Pty Ltd [2009] SASC 14; Essential Beauty Franchising (WA) Pty Ltd & Ors v Pilton Holdings Pty Ltd & Ors (No 3) [2014] SASC 148; Commonwealth Bank of Australia v Barker [2012] FCA 1076; Hackney Tavern Nominees Pty Ltd v McLeod (1983) 33 SASR 590; Ryan v Urban Construct (SA) Pty Ltd (No 2) (2012) 114 SASR 410, considered.

IAN RODDA PTY LTD & ANOR v RODDA & ANOR
[2015] SASC 149
Civil: Reasons for Decision
KELLY J.

On 1 July 2015 following a trial, a Judge of this Court delivered judgment in favour of the respondents, Stuart Ian Rodda and Shannon Lynn-Neil Rodda.[1] On 26 August 2015, the Judge ordered the appellants, Ian Rodda Pty Ltd and Ian Lewis Rodda, to pay to the respondents, by way of equitable compensation, the sum of $1,500,000 together with pre-judgment interest in the additional amount of $149,401.[2] The respondents were also ordered to remove caveats lodged against land at Ocean Downs (the Ocean Downs land) simultaneously with the transfer by the appellants of all of their estate and interest in the Ocean Downs land to the respondents for their sole use and benefit absolutely, free from any encumbrance. There were other orders made by the Judge not relevant to the current application.
[1] Rodda & Anor v Ian Rodda Pty Ltd & Anor; Ian Rodda Pty Ltd v Rodda & Anor [2015] SASC 95.
[2] Rodda & Anor v Ian Rodda Pty Ltd & Anor; Ian Rodda Pty Ltd v Rodda & Anor (No 2) [2015] SASC 128.
On 14 September 2015 the appellants filed a notice of appeal. By an interlocutory application filed on the same day, the appellants seek orders that there be a stay of execution in respect of certain orders made by the Judge on 26 August 2015, in particular the orders to pay the equitable compensation together with interest, and to transfer the Ocean Downs land to the respondents. The interlocutory application is brought pursuant to r 300 of the Supreme Court Civil Rules 2006.
The respondents oppose any stay in respect of the orders to pay the equitable compensation and interest, and to transfer the Ocean Downs land.
During the argument on the hearing of this application, I was referred to a number of decisions dealing with the circumstances in which a stay of execution of a judgment will be granted pending an appeal.[3]
[3] Landmark Operations Ltd v J Tiver Nominees Pty Ltd [2009] SASC 14; Essential Beauty Franchising (WA) Pty Ltd & Ors v Pilton Holdings Pty Ltd & Ors (No 3) [2014] SASC 148; Commonwealth Bank of Australia v Barker [2012] FCA 1076; Hackney Tavern Nominees Pty Ltd v McLeod (1983) 33 SASR 590; Ryan v Urban Construct (SA) Pty Ltd (No 2) (2012) 114 SASR 410.
The authorities that I was referred to indicate that the applicable principles are as follows. A stay will be warranted when the justice of the case so requires, however the norm is that there will be no stay pending an appeal. The onus is on the applicant seeking the stay, and that onus is not discharged lightly. An applicant seeking a stay must establish:
·Firstly, that the appeal raises a serious issue for determination by an appellate court;
·Secondly, that there is a real risk that the applicant will suffer prejudice or damage of some significance if the stay is not granted, which prejudice or damage could not be redressed by a successful appeal; and
·Thirdly, assuming the first two conditions are satisfied, that the balance of convenience favours the granting of a stay in the sense that the potential detriment to the applicant if the stay is refused and the appeal is successful, will outweigh the potential detriment to the respondent if the stay is granted and the appeal is dismissed.
The second appellant, Ian Rodda, contends that he is particularly concerned that if the stay is not granted and the appellants pay the equitable compensation amount, the respondents will not be able to repay the money if the judgment is overturned on appeal. That concern is based on the affidavit of Stuart Rodda, the first respondent, sworn on 22 September 2015 in which he explains where monies already paid in the total amount of $824,735 have been spent. This expenditure largely includes payment of legal fees and expenses arising from these proceedings. The second appellant is also concerned that if the respondents obtain possession of the Ocean Downs land and begin to farm the property there will be further expenses incurred for an independent contractor to be brought in, which expense would be unnecessary if the second appellant and his son Adrian are permitted to carry out the 2015/2016 harvest.
The appellants submit that there is a very strong argument in favour of the appellants succeeding on appeal.
Serious issue for determination
As to the first issue, namely whether the appellants have any real prospect of succeeding on appeal, the respondents submit that the appeal has either nil or minimal prospects of succeeding. I consider that because the findings of the trial Judge are predicated on a number of findings in relation to the credit of the main witnesses in the trial, and because those findings of credit were central to the resolution of the factual disputes and consequently to some of the legal issues which arose, the appellants will face a high hurdle in persuading an appeal court that the trial Judge has erred. Nevertheless, I am not in a position to find, and do not find, that the grounds of appeal are completely without merit. For these reasons, and although the appellants do carry the onus on this application, I do not consider that this first issue that must be established by the appellants militates against granting a stay.
Risk of prejudice
As to the second matter, I am not persuaded that the appellants have established that they are at any real risk of suffering prejudice or damage if a stay is not granted, which cannot be or could not be redressed if the appellants are successful on appeal.
One aspect of this matter that I consider militates firmly in favour of the respondents gaining immediate access to the Ocean Downs land is the significant ongoing acrimonious relations not just between the second appellant and the respondents, but between other members of the family involved in running one or other of the second appellant’s properties. The only way in which this ongoing acrimony, which I am told has on occasion involved reports being made to the police, can be avoided is to make orders which will require one or other of the parties to absent themselves from the Ocean Downs land, insofar as is possible given the proximity of the Yaringa farm and the Ocean Downs land. In all of the circumstances, I consider that the balance of convenience lies in favour of the respondents who already live on the Ocean Downs land, have no other place of residence and whose labour is currently underutilised.
Balance of convenience
Notwithstanding their ongoing differences of opinion about best practice farming methods (of which there is abundant evidence in the affidavits filed before this hearing) I consider that either of the second appellant or the first respondent are able to competently farm the Ocean Downs land. They have both been involved in farming it for many years. In that sense, it is neither here nor there which party carries out the 2015/2016 harvest. I do not consider the second appellant’s concerns about the extra cost of contractors being engaged to be of such significance as to militate against making an order which will give the respondents full control and possession of the Ocean Downs land in accordance with the Judge’s order.
Conclusion
For these reasons, I consider that there should be no order staying the transfer of the land and the ability of the respondents to resume occupation, possession and management of the Ocean Downs land.
I am also influenced by the undertaking given by the respondents not to sell the Ocean Downs land, pending the outcome of the appeal.
With regard to the payment of the equitable compensation and pre-judgment interest, I do not consider that there is any good reason to stay the order requiring immediate payment of those amounts, given the second appellant’s asset base. I do not consider that the appellants have discharged the onus upon them to demonstrate irrevocable prejudice such as to render any successful appeal nugatory, should the application for a stay in relation to the orders for compensation and interest, and transfer of the Ocean Downs property be refused. In reaching this conclusion, I am mindful that while this has been a commercial dispute between two successful farming partners, what lies at the heart of this dispute is a complete breakdown of familial relationships which has had tragic consequences for everyone concerned.
I note that there has been no opposition by the respondents to a partial stay in respect of other orders made by the Judge requiring a taking of accounts and profits in relation to the Ocean Downs property since December 2012.
Accordingly, and having regard to that concession, I will hear the parties as to the appropriate form of the orders to dismiss this application insofar as a stay is sought in relation to the payment of equitable compensation and interest, and a transfer of the Ocean Downs land, but allowing the application insofar as the orders contained in [11] to [14] of the Judge’s orders on 26 August 2015 are concerned.
I shall also hear the parties in relation to the costs of this application.