Khayat Investments Pty Ltd v Winston Holdings Pty Ltd and Ayoman Pty Ltd

[2010] WASC 270

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   KHAYAT INVESTMENTS PTY LTD -v- WINSTON HOLDINGS PTY LTD & AYOMAN PTY LTD [2010] WASC 270

CORAM:   CORBOY J

HEARD:   1 OCTOBER 2010

DELIVERED          :   6 OCTOBER 2010

FILE NO/S:   GDA 19 of 2010

BETWEEN:   KHAYAT INVESTMENTS PTY LTD

Applicant

AND

WINSTON HOLDINGS PTY LTD & AYOMAN PTY LTD
Respondents

Catchwords:

Application for a stay of orders made by the State Administration Tribunal pending determination of appeal - Section 106 of the State Administrative Tribunal Act 2004 (WA) - Whether the Tribunal had jurisdiction to grant leave under s 11(5)(b) of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) - Special circumstances - Public interest in the efficient administration of justice

Legislation:

Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 11(3), s 11(5), s 15C
State Administrative Tribunal Act 2004 (WA), s 55, s 106(1)

Result:

Application for stay granted

Category:    B

Representation:

Counsel:

Applicant:     Mr J R Birman

Respondents                 :     Mr M W Fatharly

Solicitors:

Applicant:     Birman & Ride

Respondents                 :     Kott Gunning

Case(s) referred to in judgment(s):

Chief Executive Officer, Department for Child Protection v 'C' [2007] WASCA 172

Chief Executive Officer, Department for Child Protection v 'S' [2007] WASCA 230; (2007) 98 ALD 329

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308

Hamersley Iron Pty Ltd v Lovell(1998) 20 WAR 79

Swanville Investment Pty Ltd v Riana Pty Ltd [2003] WASCA 121

Yallingup Residents Association (Inc) v State Administrative Tribunal [2006] WASC 52

CORBOY J: 

The application and the result

1. This is an application by the appellant, Khayat Investments Pty Ltd (Khayat Investments), for a stay of proceedings in the State Administrative Tribunal pending determination of an appeal from a decision made by the Tribunal on 14 September 2010. The application for the interim stay is made pursuant to s 106(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

2. I have decided that the application should be granted.

Background to the application

1. Khayat Investments is the lessee of commercial premises known as Shops 8 and 9, 726 Hay Street, Perth (the Premises).  The respondent, Winston Holdings Pty Ltd (Winston Holdings), is the lessor of the Premises.  There appear to have been disputes in the past over the form and terms of the lease granted in respect of the Premises but those disputes are not material to this application.

2. By an application dated 9 September 2009, Winston Holdings applied to the State Administrative Tribunal for various orders, including that it be granted leave pursuant to s 11(5)(b) of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) (the Act) to refer to the Tribunal for determination a question as to the gross rent payable by Khayat Investments in respect of the Premises and that there be a determination of that question (the Rent Review Question). The grounds upon which the application was made referred to antecedent negotiations between the parties that had failed to achieve an agreement on the rent payable following a review. It was common ground that in the course of those negotiations the parties had agreed to appoint a licensed valuer, Mr Del Dosso, to fix the gross market rent from the review date but that they had been unable to agree the terms on which the valuer was to complete the determination.

3. The application was referred to mediation.  On 9 October 2009, orders in the following terms were made by Member McNab and Sessional Member McNaughton:

   1.Following mediation in the Tribunal on 9 October 2009, the parties have agreed, subject to these orders, that Mr John Del Dosso of Colliers International shall resolve the 'rent payable' (that is, the gross rental) as at 7 April 2008, in accordance with and for the purposes of s 11(3)(a) of the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA).

   2.Without limiting the exercise of Mr Del Dosso's expert professional judgment, the determination shall take place upon the written information already supplied by the parties to date, with the intent that the parties shall not and shall not be required to supply any such further information.

   3.Without prejudice to either party's position, the parties also agree to defer all jurisdictional and procedure matters or issues that arise out of, or may arise out of, the applicant's application (including any cross action that might be proposed), until the date fixed for further mediation, or such other date as may be agreed upon between the parties.

   4.The Tribunal is adjourned until 4 December 2009 at 10.00 am.

   5.The Tribunal shall send a copy of these orders together with appropriate correspondence to Mr Del Dosso.

4. Mr Del Dosso subsequently provided what he described as a 'rental determination'.  That determination is said to have been made on 27 January 2010. 

5. The parties did not regard Mr Del Dosso's determination as binding.  Rather, they considered that the dispute over the rent payable upon a review had not been settled and the Tribunal made orders that recognised that a resolution of 'the matter' had not been achieved by mediation (see the orders made on 24 March 2010).  The Tribunal also gave directions for the progress of the application to a substantive hearing (see the orders made on 29 April, 27 May, 23 June and 19 August 2010).  The orders made by the Tribunal included extensive directions programming the procedural steps necessary to prepare the application for hearing.

6. On 11 June 2010, Khayat Investments filed a reply and cross‑claim to the application by Winston Holdings. Paragraph 1 of the reply stated that Khayat Investments would consent to orders that Winston Holdings be granted leave to refer the Rent Review Question to the Tribunal for determination and that there be a determination of that question. Khayat Investments also cross‑claimed for a declaration that Winston Holdings had engaged in unconscionable conduct contrary to s 15C of the Act and for an order that it pay such compensation as the Tribunal might determine.

7. The statement of facts by which Khayat Investments alleged that Winston Holdings had engaged in unconscionable conduct was rather attenuated.  As I read the statement, the conduct was alleged to have occurred prior to the commencement of Winston Holdings' application in the Tribunal and was in connection with the initial appointment of Mr Del Dosso as the valuer engaged to determine the rent.  However, there is some ambiguity about the statement of facts and Winston Holdings contends in this application that the allegation of unconscionability extends to matters that occurred during Mr Del Dosso's determination following the orders made by the Tribunal on 9 October 2009.

8. On 14 September 2010, Senior Member Raymond heard and determined two applications within the proceedings commenced by Winston Holdings.  He described the first application as having been brought on the initiative of the Tribunal.  That application concerned whether Khayat Investments had complied with the Tribunal's procedures in commencing its cross‑claim and if not, the consequences of its non‑compliance.

9. The second matter considered by Senior Member Raymond was an application by Khayat Investments for dismissal of the substantive application initiated by Winston Holdings on the ground that the Tribunal lacked jurisdiction to hear and determine the Rent Review Question. The Tribunal refused that application and in doing so, granted Winston Holdings leave under s 11(5) of the Act. It is that decision which is the subject of the appeal commenced by Khayat Investments.

10. A consequence of the Tribunal's decision was that the parties remained bound to comply with the directions that had been made for preparing the application and Khayat Investments' cross-claim for hearing.  The directions provided for the exchange of witness statements and expert evidence, a conference between the expert witnesses, the preparation of a trial bundle and the exchange of a 'skeleton outline' of the parties' contentions.  Those steps had not been completed as at the date of Khayat Investments' application for an interim stay.

11. The application for a determination under s 11(5) of the Act and Khayat Investments' cross‑claim have been listed for hearing by the Tribunal on 1 and 2 November 2010.

Khayat Investments' contention

1. Section 11(5) of the Act provides that:

   Notwithstanding subsection (3), a party to a retail shop lease may refer to the Tribunal for determination a question as to the rent payable as a result of the review by the parties where -

   (a)the persons acting under subsection (3)(b) fail to reach an agreement on the rent to be paid; or

   (b)a person has not acted under subsection (3)(a) or (b) and the leave of the Tribunal has been obtained,

   but otherwise such a question shall not be referred to the Tribunal.

2. Section 11(3) of the Act provides that:

   A retail shop lease that provides for review of the amount of rent payable during the currency of the lease shall be taken to provide that where the parties do not agree on the rent payable as a result of the review, the question shall be resolved, subject to subsection (5), by either ‑

   (a)a person licensed under the Land Valuers Licensing Act 1978 agreed to by each of the parties; or

   (b)2 persons licensed under that Act, one of whom is appointed by the landlord and one of whom is appointed by the tenant.

3. Khayat Investments contended in the Tribunal that Mr Del Dosso's 'determination' pursuant to the orders made on 9 October 2009 was a resolution of the Rent Review Question under s 11(3) of the Act, with the result that a requirement for referral of that question to the Tribunal for determination under s 11(5) was not and could not be satisfied (that a person had not acted under s 11(3)). Consequently, Winston Holdings could not refer the Rent Review Question to the Tribunal for determination and the Tribunal had no jurisdiction to grant leave under s 11(5) or to embark upon a determination of the rent payable in respect of the Premises.

The Tribunal's reasons

1. In its reasons delivered extempore on 14 September 2010, the Tribunal rejected the application by Khayat Investments (ts 4 ‑ 5) as:

   (a)The substantive application commenced by Winston Holdings had been referred to mediation by an order made by the Tribunal on 17 September 2009.  The orders made by Member McNab and Sessional Member McNaughton on 9 October 2009 were made at that mediation.

   (b)No evidence was given as to what occurred at the mediation (see s 55 of the SAT Act). Accordingly, it was necessary 'to arrive at the proper construction of the order made on 9 October 2009'.

   (c)The Tribunal had 'no doubt that the correct construction of the order is that Mr Del Dosso was to arrive at what he considered to be the appropriate rental as a basis for further negotiation by the parties during the course of mediation'.  Subsequent orders had been made by the Tribunal adjourning the mediation on many occasions and those orders had been made 'well past the handing down of a report from Mr Del Dosso'.

   (d)It was clear to the Tribunal that 'the process devised during the mediation was one aimed at achieving a solution within the Tribunal's mediation powers.  The parties having failed to reach agreement as to the rental following the steps carried out by Mr Del Dosso', the matter remained properly before the Tribunal.

   (e)The matter had only been referred to the Tribunal under s 11(5) of the Act because the person agreed by each of the parties to determine the rent payable under the lease had not acted under s 11(3)(a) to provide a determination which resolved that question. Consequently, the Tribunal was satisfied that this was a matter in which it was appropriate to grant leave under s 11(5).

The argument of Khayat Investments on the stay application

1. In addition to asserting the correctness of its argument before the Tribunal, Khayat Investments contended that a stay should be granted as it would not be in the public interest, and it would be detrimental to both parties, for the substantive application to proceed to a hearing if it was subsequently held on appeal that the Tribunal lacked jurisdiction to determine the application.  The detriment to the parties would include substantial and unnecessary expense being incurred in complying with the Tribunal's programming orders and in appearing at the hearing.

2. It should be noted in that context that Khayat Investments seeks a stay of the entire proceedings in the Tribunal; that is, its cross‑claim would be affected by the stay as well as the proposed determination under s 11(5) of the Act.

The position of Winston Holdings

1. Winston Holdings opposed the grant of a stay on several grounds that may be summarised as follows:

   (a)The decision of the Tribunal was correct. In addition to adopting the reasoning of the Tribunal, Winston Holdings argued that the Tribunal had jurisdiction to grant leave and conduct a determination under s 11(5) in any event as there had not been a resolution of the Rent Review Question at the time that its application had been commenced. At that time, the parties had not been able to agree on the terms on which Mr Del Dosso was to conduct a rent determination and so no valuer had acted under s 11(3). Implicit in that argument was the proposition that the Tribunal's jurisdiction was to be ascertained at the time that the application by Winston Holdings was commenced and not at the time that leave to refer the Rent Review Question to the Tribunal for determination was granted.

   (b)There had been a substantial delay before the Tribunal's jurisdiction had been challenged by Khayat Investments.  Both parties had for some time accepted that Mr Del Dosso's 'determination' had not resolved the rent dispute and Khayat Investments had participated in the procedural steps necessary to prepare the substantive application for hearing, including by indicating its consent to the Rent Review Question being determined by the Tribunal and by making its cross‑claim.

   (c)Winston Holdings would be prejudiced by the grant of a stay, principally through further delay in determining the Rent Review Question. In addition, the cross‑claim by Khayat Investments indicated that it contested the correctness of the valuation report provided by Mr Del Dosso subsequent to the 9 October 2009 orders. Consequently, the dispute between the parties over the rent review would not be finally settled even if it was held on appeal that the valuation was a resolution of the Rent Review Question within the meaning of s 11(3) of the Act.

2. It was also suggested that having regard to the history of the matter, the denial by Khayat Investments of the Tribunal's jurisdiction and the institution of an appeal from its decision granting leave under s 11(5) was a tactic to delay the proper determination (and payment) of the rent.

The relevant principles

1. Section 106(1) empowers the court to stay the operation of a decision of the Tribunal pending the determination of an application for leave to appeal from the decision and of any appeal. The section does not specify any criterion by which the question of whether a stay should be granted is to be decided. Consequently, the court has applied the principles ordinarily relevant to the determination of applications for a stay pending appeal: see for example, Chief Executive Officer, Department for Child Protection v 'C' [2007] WASCA 172 and Chief Executive Officer, Department for Child Protection v 'S' [2007] WASCA 230; (2007) 98 ALD 329. A summary of those principles can be found in the judgment of Murray and Parker JJ in Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9].

2. There are three matters concerning the operation of those principles that should be noted for the purpose of determining this application.  Subject to those matters, I adopt and apply the principles stated in Eastland Technology.

3. First, according to the principles identified in Eastland Technology, the ordinary rule is that a successful party at first instance is entitled to the benefit of its judgment unless the party seeking the stay can demonstrate that there are 'special' circumstances that justify a departure from that rule.  However, it has been suggested that the applicant for a stay must demonstrate 'exceptional' circumstances and that this imposes a qualitatively different requirement to a test expressed in terms of 'special' circumstances:  see for example, Yallingup Residents Association (Inc) v State Administrative Tribunal [2006] WASC 52 [29] ‑ [32] (Johnson J).

4. The reference to 'exceptional' circumstances has its origins in High Court authority concerning the jurisdiction to stay proceedings below pending the grant of special leave to appeal:  see Hamersley Iron Pty Ltd v Lovell (1998) 20 WAR 79 and the authorities cited by Anderson J at 89. The expression 'special' circumstances on the other hand, is apparently derived from the repealed O 47 r 13(1) of the Rules of the Supreme Court1971 which provided that the court could stay the execution of a judgment or order if satisfied by the judgment debtor or other person liable to execution that 'by reason of special circumstances' it was inexpedient to enforce the judgment or order.

5. In Eastland Technology, Murray and Parker JJ (at 310 ‑ 311) expressed a test in terms of special circumstances after referring to O 47 r 13 and the discussion of the High Court authorities in Hamersley Iron v Lovell.  That suggests that their Honours may have considered that there was no substantive difference in this context between the expressions 'special' circumstances and 'exceptional' circumstances.  Some support for that view might be found in the reasons of Ipp J in Hamersley Iron v Lovell where his Honour concluded that an examination of the relevant High Court authorities indicated a uniform approach by which 'a stay of execution pending an application for special leave to appeal to the High Court will only be granted in "special" or "exceptional" or "extraordinary" circumstances' (85).

6. With respect to Johnson J, I am inclined to the view that there is no substantive difference between a requirement that an applicant for a stay demonstrate 'special' circumstances and a requirement that 'exceptional' circumstances be established (and I note that it appears that her Honour was not referred to Eastland Technology).  In any event, two members of the Court of Appeal (Buss JA in Chief Executive Officer, Department for Child Protection v 'C' and Pullan JA Chief Executive Officer, Department for Child Protection v 'S') have applied the principles summarised by Murray and Parker JJ in Eastland Technology when considering applications for a stay under s 106 of the SAT Act, including a requirement that special circumstances must be shown to justify a departure from the ordinary rule that a successful party is entitled to the benefit of its judgment. I consider that I ought to follow those decisions and adopt that test.

7. The second matter to be noted about the application of the principles identified in Eastland Technology concerns the statement by Murray and Parker JJ that the 'central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation'; that is, whether the right of appeal will be rendered nugatory if a stay is not granted (311).  As Pullin JA observed in Chief Executive Officer, Department for Child Protection v 'S', that consideration will be particularly important where the judgment concerns money or property; however, it may be of little or no relevance where there is no property to be transferred or money to be paid pursuant to the judgment [6]. The true effect of refusing a stay may not be captured where an administrative decision is involved if the inquiry is framed in terms of the destruction of the subject matter of the decision.

1. The final matter to note regarding the principles summarised in Eastland Technology is that it is well established that the public interest may be a material factor in determining whether to grant a stay:  Chief Executive Officer, Department for Child Protection v 'C' [15] and Chief Executive Officer, Department for Child Protection v 'S' [6]. There is, of course, a public interest in the efficient administration of justice. Although that interest was not expressly referred to by Malcolm CJ in Swanville Investment Pty Ltd v Riana Pty Ltd [2003] WASCA 121, it may nevertheless have found its expression in his Honour's observations, made in an appeal from an interlocutory order, that a stay will be granted 'if the interlocutory order is of central significance to the progress of the substantive litigation; it may be appropriate to grant a stay pending the hearing of an appeal if that is the most timely and efficient means of advancing the proceedings generally' [6].

2. I propose to consider the merits of the appeal and the balance of convenience before turning to the question of whether there are special circumstances that would justify depriving Winston Holdings of the immediate benefit of the leave that it has been granted to refer the Rent Review Question to the Tribunal for determination.  I accept, of course, that the ordinary rule that a successful party is entitled to the benefit of its judgment is the starting point for considering whether a stay should be granted.  However, the reasons why I consider that there are special circumstances in this case that justify a departure from that rule are best explained after the merits of the appeal and the balance of convenience have been assessed.

The merits of the appeal

1. In my view, the appeal by Khayat Investments has reasonable prospects of success.

2. The Tribunal identified the need to 'construe' the orders made on 9 October 2009 in the absence of evidence of what had occurred during the mediation.  However, with respect the Tribunal did not appear to pay close attention to the wording of the orders that had been made by Member McNab and Sessional Member McNaughton.  In my view, the first order that was made is susceptible to the following analysis:

   (a)The words, 'following mediation in the Tribunal on 9 October 2009' was preamble identifying the circumstances in which the orders came to be made.

   (b)The words, 'the parties have agreed' both records the outcome of the mediation and was a reference back to s 11(3)(a) of the Act. That section expressly refers to a licensed valuer 'agreed to by each of the parties'. The order might be understood as recording the agreement of the parties to the appointment of Mr Del Dosso as required by the section.

   (c)The words, 'subject to these orders' refers to the direction contained in the second of the orders that was made by the Tribunal on 9 October 2009.

   (d)The words 'Mr John Del Dosso … shall resolve the "rent payable"' was again a reference to the wording of s 11(3). The section expressly provides that the question of the 'rent payable' as a result of a review shall be 'resolved' in either of the ways specified in the section (a 'resolution' of the rent question under s 11(3) being a different procedure to the 'determination' of the rent by the Tribunal under s 11(5)).

   (e)The words, 'in accordance with and for the purposes of s 11(3)(a) of the Commercial Tenancy (Retail Shops) Agreement Act 1985 (WA)' made it clear that the resolution of the question of the rent payable by Mr Del Dosso was to be pursuant to s 11(3) ‑ that is, it would take effect as a resolution of the rent payable under that section with the consequences that are provided for by the Act.

3. That interpretation is not necessarily inconsistent with the terms of the third order made by the Tribunal on 9 October 2009.  That order stated that the parties also agreed 'to defer all jurisdictional and procedural matters/or issues that arise out of, or may arise out of, the applicant's application (including any cross‑action that might be proposed)' until a further mediation.  The jurisdictional and procedural matters that were contemplated by the order are not immediately apparent on the material that was presented in the application for the interim stay.  However, the order appears to have referred to matters that were ancillary to the primary controversy ‑ the question of the rent payable by Khayat Investments from the review date.  The first order seems to provide for an agreed means of answering that question; the third order appears to deal with other residual matters.

4. The context for the orders made by the Tribunal on 9 October 2009 was the mediation that was conducted on that day. Obviously, evidence of what occurred at the mediation would assist in understanding that context and the orders that were made. However, that evidence is not available and in the circumstances, an interpretation of the orders that relegates the operation of the third order made by the Tribunal to subsidiary matters and provides by the first order for the central issue in the dispute to be settled by a resolution of the rent payable under s 11(3) of the Act is plainly arguable.

5. I also consider that there is a reasonable argument available to Khayat Investments that the question of whether a person has acted under s 11(3) for the purpose of a proposed referral under s 11(5) of the Act is to be determined at the time that the Tribunal considers whether to accept the referral by granting leave and not at the time when the party seeking a determination commences its application.

Balance of convenience

1. In my view, the balance of convenience favours the grant of a stay of the proceedings in the Tribunal pending determination of Khayat Investments' appeal.  The Tribunal will have allocated scarce and valuable resources to hearing and deciding a matter if a stay is refused and Khayat Investments ultimately succeeds in its contention that the Tribunal lacked jurisdiction to determine the Rent Review Question.  Similarly, the parties will have incurred the costs entailed in completing preparation for, and appearing at, a hearing that was substantially directed to that question (although, I recognise that some part of the hearing would also be devoted to Khayat Investments' cross‑claim).

2. There is, of course, considerable force in Winston Holdings' complaint that it is prejudiced by Khayat Investments delay in challenging the Tribunal's jurisdiction to make a determination under s 11(5) of the Act. That prejudice can, at least in part, be ameliorated by expediting the appeal and if necessary, making appropriate orders as to costs. It must be accepted that even a expedited appeal will not preserve the dates currently allocated by the Tribunal for the hearing of Winston Holdings' application under s 11(5) of the Act. However, it is to be hoped that the Tribunal would reallocate early hearing dates if Khayat Investments' appeal is dismissed.

3. Winston Holdings argued that one reason for refusing to grant an interim stay was the possibility that the dispute between the parties over the rent payable in respect of the Premises would not be settled even if Khayat Investments succeeds in its appeal. That was because Khayat Investments' cross‑claim indicated an intention to contest the accuracy of Mr Del Dosso's rent determination delivered in January 2010. At the hearing of the stay application counsel for Khayat Investments advised that there would be no utility in the cross‑claim if the appeal was successful. That is not necessarily so; Khayat Investments could both deny the jurisdiction of the Tribunal to determine the rent payable in respect of the Premises and commence separate proceedings to directly or collaterally attack what would otherwise become a binding resolution of that question made under s 11(3) of the Act. However, that possibility is secondary to the immediate risk that the Tribunal may be purporting to exercise a jurisdiction that it does not possess. In the circumstances, I consider that the observations of Malcolm CJ in Swanville Investments are apposite.

4. Finally, I do not consider that the history of the proceedings in the Tribunal as disclosed in the material presented at the hearing of this application established that the appeal by Khayat Investments is an abuse of process or has been instituted for an improper and collateral purpose.

Special circumstances

1. The requirement that the applicant for a stay demonstrate special circumstances justifying a departure from the ordinary rule that a successful party is entitled to the benefit of its judgment has caused me the most difficulty in determining this application.  However, I have concluded that Khayat Investments has established circumstances that are sufficiently special to justify a departure from the ordinary rule.

2. The benefit derived by Winston Holdings from the Tribunal's decision was the grant of leave to refer the Rent Review Question to the Tribunal for determination. A determination has not yet occurred. In my view, an argument that a tribunal is about to exercise a jurisdiction to determine the rights and liabilities of parties that it arguably does not possess may constitute a special circumstance. There is, I think, in this context a significant difference between a possible error going to jurisdiction and an error made within jurisdiction, at least where the tribunal has not purported to finally determine the parties' rights and liabilities. In this case, that difference finds its expression in the public interest in the efficient administration of justice ‑ the desirability of clarifying the Tribunal's jurisdiction to make a determination under s 11(5) of the Act prior to it purporting to exercise jurisdiction pursuant to that section. In my view, an interim stay will best serve the public interest in the most timely and efficient means of resolving the dispute between the parties (including determining whether the Tribunal has jurisdiction over the dispute or whether it has been resolved by Mr Del Dosso's report of January 2010) and the undesirability of the Tribunal purporting to exercise a jurisdiction that it may not possess.

3. Winston Holdings sought an order that Khayat Investments pay into court the difference between the rent that has been paid and the rent that would have been payable under Mr Del Dosso's January 2010 rent determination as a condition of the grant of any stay.  I do not consider that the imposition of such a condition is appropriate having regard to the findings I have made about the factors relevant to the grant of a stay.  The imposition of such a condition would also be inconsistent with the position adopted by Winston Holdings in respect of Mr Del Dosso's determination; it obviously does not accept that the determination is binding on the parties.