Landmark Operations Ltd v J Tiver Nominees Pty Ltd
[2009] SASC 14
•23 January 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules: Civil)
LANDMARK OPERATIONS LTD v J TIVER NOMINEES PTY LTD & ORS
[2009] SASC 14
Reasons for Decision of The Honourable Justice Sulan
23 January 2009
PROCEDURE - JUDGMENTS AND ORDERS - ENFORCEMENT OF JUDGMENTS AND ORDERS - EXECUTION AGAINST PROPERTY
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS
Judgment entered and consequential orders including order for possession made against the defendants - defendants applied for stay of execution of orders pending outcome of appeal - consideration of factors relevant to grant of stay pending appeal.
Held: Application refused.
Enforcement of Judgments Act 1991 (SA) s 17; Supreme Court Civil Rules 2006 (SA) r 284, referred to.
Landmark Operations Limited v J Tiver Nominees Pty Ltd & Ors [2008] SASC 322, applied.
Bartley v Myers [2001] SASC 212, discussed.
Duke Group Ltd (in liq) v Pilmer & Ors (unreported, Supreme Court of South Australia, Mullighan J, 16 June 1998); Enterprise Gold Mines NL v Mineral Horizons NL (No 1) (1988) 52 NTR 13; Hackney Tavern Nominees Pty Ltd v McLeod (1983) 33 SASR 590; Inglis v Commonwealth Trading Bank of Australia [1972] ALR 591; Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65; Technilock (Australia) Pty Ltd v Mondami Pty Ltd [1999] SASC 94, considered.
LANDMARK OPERATIONS LTD v J TIVER NOMINEES PTY LTD & ORS
[2009] SASC 14Civil
SULAN J
Introduction
This is an application by the defendants to stay execution of the judgment[1] and consequential orders made in this action on 21 and 26 November 2008, respectively, to which I will refer collectively as “the judgment”, pending the outcome of an appeal against the judgment, which was lodged by the defendants on 10 December 2008.
[1] Landmark Operations Ltd v J Tiver Nominees Pty Ltd & Ors [2008] SASC 322.
Background
The relationship between the parties is detailed in the judgment.[2] For present purposes it suffices to recount that the plaintiff, Landmark Operations Ltd, is a rural financier which lent money to the second to sixth defendants, who trade in partnership as Flagstaff Proprietors in Burra. The first defendant guaranteed the borrowings of Flagstaff Proprietors. The facility was secured by property and stock mortgages granted in the plaintiff’s favour by the first to fifth defendants. Flagstaff Proprietors defaulted under the terms of the facility. Eventually, the plaintiff issued notices of demand, followed by notices of default and intention to sell, none of which were satisfied. Proceedings were issued in which the plaintiff sought repayment of the loan which, together with interest, exceeded $10 million. The defendants admitted monies were owing under the facility which had not been repaid. They denied liability to repay the monies. They sought orders that the terms of the facility were unenforceable. In the alternative, by counterclaim, they sought to set off the debt said to be owing.
[2] Ibid.
On 21 November 2008, I entered judgment for the plaintiff and dismissed the defendants’ counterclaim. On 26 November 2008, I made the following orders:
1.The Plaintiff recover against the Second to Sixth Defendants the sum of $10,857,200.18 (“the Judgement Sum”).
Possession
2.Within 7 days of the service of a copy of this order on them, the First to Fifth Defendants, J Tiver Nominees Pty Ltd, John Darcy Tiver, Phyllis Blanche Tiver, James Hamilton Tiver and Benjamin John Tiver give the Plaintiff possession of the land set out and described in Annexure A to this Judgement (referred to in these orders as “the Properties”).
Crops
3.The Defendants do, within 7 days of the service of a copy of this order on them, execute crop mortgages in favour of the Plaintiff in respect of all hay, grain, seed and other crops:
3.1 growing on the Properties; or
3.2 already harvested from the Properties in the harvest seasons 2007-8 and 2008-9 which are still in the custody and control of the Defendants or any of them (together, referred to in these orders as “the 2007 and 2008 crops”).
4.In the event that any of the Defendants refuse or otherwise fail to comply with Order 3 hereof, then the Registrar of the Supreme Court of South Australia, an officer of this Court for the purpose of section 13 of the Enforcement of Judgements [sic] Act 1991, be and hereby is authorised and ordered to execute the said crop mortgages on behalf of those Defendants who have refused or otherwise failed so to comply.
5.The monies standing in Court to the credit of this action together with all interest accrued thereon to the date of payment out be paid out of Court to the Plaintiff.
6.The Defendants do remit to the Plaintiff all proceeds of sale of any of the 2007 and 2008 Crops that have been or which will be received by them or any of them.
7.Upon the expiration of 7 days after the execution of the said crop mortgages, the Plaintiff be at liberty to enter onto the Properties, take possession of, harvest where required, remove, and sell all the 2007 and 2008 crops.
8.Within 7 days of the execution of the said crop mortgages, the Defendants deliver up to the Plaintiff all the 2007 and 2008 crops that are stored on any other property apart from the Properties and that, upon delivery up, the Plaintiff be at liberty to take possession of, remove, and sell them.
Stock
9.That within 7 days of the service of a copy of this order on them, the Second to Sixth Defendants account for the stock the subject of the First Stock Mortgage and the Second Stock Mortgage, as those terms are defined in the Third Amended Statement of Claim (“the Secured Stock”).
10.Within 7 days of the service of a copy of this order on them, the Defendants execute mortgages in favour of the Plaintiff over any stock owned by them or any of them which is not the subject of the First Stock Mortgage or the Second Stock Mortgage.
11.In the event that any of the Defendants refuse or otherwise fail to comply with Order 10 hereof, then the Registrar of the Supreme Court of South Australia, an officer of this Court for the purpose of section 13 of the Enforcement of Judgements [sic] Act 1991, be and hereby is authorised and ordered to execute the said mortgage on behalf of those Defendants who have refused or otherwise failed so to comply.
12.Upon the expiration of 7 days after the service of a copy of this order on the Defendants, the Plaintiff be at liberty to enter onto the Properties, take possession of, remove and sell the Secured Stock.
13.Upon the expiration of 7 days after the execution of the mortgages the subject of Order 10 hereof, the Plaintiff be at liberty to enter onto the Properties, take possession of, remove and sell the stock the subject of those mortgages.
14.The question of the ownership of any stock by Mrs Mary Oldfield be set down for further hearing on Tuesday, 20 January 2009, at 9.30 am.
15.Within 14 days of the date of these Orders, the Plaintiff notify Mrs Oldfield by her solicitors of the date and time of the said further hearing and serve upon her a sealed copy of this Judgement and of the reasons for decision in this action that were published on the 21st day of November 2008.
Guarantee
16.It be declared that the deed of Guarantee dated the 3rd day of December 2001 and entered into between the Plaintiff and the First Defendant is enforceable by the Plaintiff as against the First Defendant.
17. The Plaintiff recover against the First Defendant pursuant to the said Guarantee:
17.1 the Judgement Sum; and
17.2 the costs ordered to be paid under Order 19 hereof.
Counter-claim
18. The Defendants’ counter-claim be and is hereby dismissed.
Costs
19.The First to Sixth Defendants pay the Plaintiff’s costs of Action on a solicitor and own client basis in accordance with the terms and conditions of the Facility Agreement, the Property Mortgages, the Crop Mortgage and the Guarantee (as those terms are defined in the Third Amended Statement of Claim).
The application for a stay of the orders relates to the possession of the various properties securing the facility.
The application
On 26 November 2008, John Darcy Tiver and Benjamin John Tiver, who appeared for all the defendants, indicated the defendants’ intention to appeal against the judgment. The plaintiff undertook not to enforce Orders 1, 2, 16, 17 and 19 until determination of an application by the defendants to stay the orders pending resolution of any appeal. On 26 November I made the following orders:
9.Should the defendants lodge an appeal against the Judgment and apply to have the Judgment and Final Orders stayed pending resolution of the appeal (“the stay application”), the defendants are to file and serve any material upon which they propose to rely on the stay application by COB on Tuesday, 23 December 2008, with that material to include a copy of the Notice of Appeal. The plaintiff is to file and serve any material in reply by COB on Wednesday, 7 January 2009. The defendants are at liberty to file and serve further material, but only in response to the plaintiff’s material in reply, by COB on Monday, 12 January 2009.
10. The stay application is to be heard at 10.30 am on Wednesday, 14 January 2009.
On 10 December 2008, the defendants filed a notice of appeal. I shall refer to the grounds of appeal in more detail later in these reasons.
The defendants filed an application for a stay of the order for possession, together with an affidavit sworn by John Tiver, on 23 December 2008. That material does no more than assert the defendants’ intention to seek a stay of the judgment. The plaintiff filed an affidavit of Luke John Charlton Rowley on 8 January 2009 in support of the plaintiff’s opposition to the application. He asserts that interest on the judgment sum is accruing at approximately $90,000 per month. The plaintiff relies on a valuation of Lindsay Wapper, dated 6 January 2009, which values the properties at $8,839,000 at current market value, and $7,750,000 on the basis of a forced sale.
Having regard to the value of all assets of the defendants, including the properties, Mr Rowley deposes that there is a shortfall on the judgment sum of approximately $1.5 million, which does not take account of approximately a further $3 million in costs. He deposes that there is a net security deficiency of approximately $4.5 million. He asserts any further delay will prejudice the plaintiff in a manner that the defendants cannot assuage.
The defendants accept that they are unable to make any payments of interest accruing on the judgment sum. The defendants do not dispute that, based on the valuation of Mr Wapper, and having regard to all assets available to satisfy the judgment, it is unlikely that the plaintiff will recover the full amount of the judgment.
On 12 January 2009, the defendants filed a further affidavit of John Tiver in response to the Rowley affidavit. The affidavit did not contain any relevant material in support of the application. In the affidavit, Mr Tiver complains of the late service of the Rowley affidavit. He alleges that the counterclaim of the defendants is in the sum of $18 million. He provides no reasons or basis for asserting that amount. John Tiver contends that it was contrary to the Rules of Court for the plaintiff to assert that the appeal is doomed to fail. Other matters to which Mr Tiver refers are not relevant to the application. In essence, he raises matters which were argued at trial without identifying the error in that reasoning. It appears that the defendants simply wish to re-argue the submissions they made at trial.
On 16 January 2009, when the application was next heard,[3] Mr Stevens of counsel appeared for the defendants. He informed the Court that his instructing solicitor had first spoken to Mr Tiver on 13 January 2009, and that he had first conferred with the solicitor and Mr Tiver on 14 January 2009. He advised that the terms of his and his solicitor’s retainer had not been finalised, but he anticipated that that would occur shortly. The solicitor had not yet had access to the judgment, pleadings, notice of appeal and sealed orders. He had considered the affidavit of John Tiver in support of the application and was of the opinion it did not contain sufficient material to support the application. He sought an adjournment of two weeks. Mr Stevens was unable to explain why the solicitor had been instructed as late as 13 January 2009 when the defendants were aware, on 26 November 2008, that the application was to be heard on 14 January 2009. Mr Stevens advised that if the Court did not grant the adjournment, he was instructed to withdraw. None of the defendants were present in Court. Mr Stevens said that he was unaware of their exact whereabouts, although he thought that they may well have returned to Burra.
[3] The hearing scheduled for 14 January 2009 was postponed to 16 January 2009, due to an administrative error.
Mr Abbott, for the plaintiff, opposed any further adjournment. He submitted that the defendants' solicitor had been notified of the plaintiff’s opposition to the application for an adjournment when the plaintiff’s solicitors first became aware of his instructions to apply for an adjournment. He submitted that the failure of the defendants to explain why they had waited until 13 January 2009 to instruct solicitors, and their failure to attend the hearing, was a further example of their attempt to delay and frustrate the plaintiff in the proceedings.
There is force in Mr Abbott’s submission. Nevertheless, the Court was faced with the unsatisfactory situation that, if the adjournment was refused, Mr Stevens would withdraw, and the defendants were not present to pursue their application in person. In my view, it was not appropriate to proceed without hearing submissions in support of the application. I therefore adjourned further hearing of the application to Wednesday, 21 January 2009.
At the hearing of the application, Mr Stevens sought to rely on an affidavit of John Tiver, sworn on 19 January 2009. John Tiver deposes that, prior to being served with an email copy of the affidavit of Luke Rowley in opposition to the application on 8 January 2009, he did not comprehend what evidence may be necessary in support of the stay application. He then sought legal advice on behalf of all the defendants.
John Tiver states that he is unable to reconcile amounts referred to in the certificates issued by the plaintiff certifying the amount outstanding under the facility with the amounts claimed in the Statement of Claim. He states that the relevant properties constitute a unique and valuable landholding in the Burra area and, if sold, they could not be replaced by similar properties. He states that an amended notice of appeal may be filed.
Further, he contends that the value of the properties represents about 5.35 per cent of the net assets of the plaintiff, as disclosed in their accounts of 30 June 2008 and, if the appeal is successful, the defendants will rank as unsecured creditors of the plaintiff for the amount that the plaintiff is required to return to the defendants. He implies that there is a real risk that the plaintiff will not be able to repay monies received by it from the sale of the properties to the defendants, thereby rendering the appeal nugatory.
Mr Tiver asserts that the order that the defendants give up possession of the properties within seven days is oppressive, as there are currently five families living in houses on the properties, some of which have young children. He asserts that there are a significant number of personal assets and items of residual unencumbered plant and equipment belonging to the defendants which would need to be removed. Further, there are agisted sheep and cattle on the properties for which arrangements for removal would need to be made. He asserts that the requirement that the defendants vacate the properties within seven days and give up possession to the plaintiff is unreasonable.
No explanation has been proffered as to any preliminary arrangements which may have been made, or investigations conducted by the defendants to ensure that they might be in a position to give up possession of the properties if so required. The defendants have been aware of the Court orders since 26 November 2008.
The plaintiff opposes the application. Mr Abbott submits that none of the grounds of appeal are reasonably arguable. He submits a number of the grounds of appeal are not proper grounds of appeal, as they do not allege error. Many of the grounds of appeal challenge findings of fact, when there is overwhelming evidence which supports those findings. Many of the conclusions which are sought to be challenged are based on findings relating to the credibility of the witnesses, when there is overwhelming evidence to support the findings. Some grounds of appeal were not pressed at trial and were not pleaded. He submits that the notice fails to set out the orders sought and is, therefore, defective.[4] Further, he submits that, at the trial, the defendants failed to particularise orders that they sought on the counterclaim, and there was no evidence to support the counterclaim.
[4] Supreme Court Civil Rules 2006 (SA), r 284(2)(d).
The defendants are unable to meet the daily interest accruing on the judgment. Mr Abbott contends they have provided no information about their current financial position. He submits that the defendants have failed to establish that a stay should be granted.
Mr Abbott submits that the plaintiff is entitled to immediate possession, and further delay will occasion irreparable prejudice. He contends that the plaintiff is a substantial company which is in a position to repay any amounts it receives if the defendants are successful in their appeal. Further, Mr Abbott submits that the contention that the order for possession will render the defendants’ appeal nugatory has no basis. He argues that simply taking possession of the properties cannot render the defendants’ appeal nugatory. As to the concern of the defendants that, if the properties are sold, they could not be replaced easily, he submits that there is no evidence to support that contention.
Stays pending appeal
Section 17 of the Enforcement of Judgments Act 1991 (SA) provides:
A party against whom a judgment has been given may apply to the court for a stay of execution, and the court may, if satisfied that there is a proper reason for granting the stay, grant the stay on such terms as it considers appropriate.
Rule 300 of the Supreme Court Civil Rules 2006 (SA) provides as follows:
(1) An appeal or an application for permission to appeal does not operate to stay execution of or proceedings on the judgment subject to the appeal or application nor does it invalidate proceedings that have already been taken on the judgment.
(2) The Court may, however, order a stay of execution of, or proceedings on, a judgment for any proper reason.
Examples—
1 If the judgment is subject to appeal to the Court or the High Court, the existence of the appeal may constitute a proper reason for granting a stay.
2 If the Court is satisfied that an appeal or an application for permission to appeal to the Court or the High Court is intended, the Court may be satisfied that the proposed appellate proceeding is a proper reason for granting a stay.
The Court has an inherent jurisdiction to grant a stay of proceedings. Usually, a stay will not be granted pending appeal.[5]
[5] See Hackney Tavern Nominees Pty Ltd v McLeod (1983) 33 SASR 590; Enterprise Goldmines NL v Mineral Horizons NL (No 1) (1988) 52 NTR 13.
The general rule is that a mortgagee will not be enjoined from exercising its right to possession or power of sale unless the amount of the mortgage debt, if this be not in dispute, be paid, or if the disputed amount claimed by the mortgagee is paid into Court.[6] The rule is stated in Meagher, Gummow and Lehane’s Equity Doctrines & Remedies (4th ed):[7]
Another important application comes from the law of mortgages: a mortgagor in default cannot obtain an injunction to restrain his mortgagee’s breach of duty unless he either repays all principal and interest claimed – not admittedly owing – to the mortgagee or else pays them into court. This is a rule which can, obviously, operate somewhat harshly if, for example, the mortgagee is exercising his power of sale in an improper manner. Yet, so far, the rule has been applied almost inflexibly: a mortgagor in default who is unable to repay the moneys secured is almost invariably denied equitable relief and relegated to his pecuniary claims. [references omitted]
[6] See Inglis v Commonwealth Trading Bank of Australia [1972] ALR 591.
[7] Page 93 [3-080].
It may be said that the principle has even greater application in respect of an application to stay an order for possession when the plaintiff has a court order for possession in its favour, and seeks to enforce its security in default of payment of the judgment sum.
The defendants bear the onus of satisfying the Court that a stay should be granted. That onus is not discharged lightly.[8]
[8] Hackney Cavan Nominees Pty Ltd v McLeod (1984) 43 SASR 590, 594.
A party seeking a stay must satisfy the Court that there is a proper reason to order a stay. In Bartley v Myers,[9] Lander J considered the Court’s inherent power to grant a stay. He observed:[10]
Earlier decisions suggested that a party seeking a stay would have to make out exceptional circumstances before a stay was granted. Later decisions, with which I respectfully agree, suggest that it is not necessary to show exceptional circumstances but it is enough to show that the justice of the case requires that a stay be granted.
In my opinion it is not useful to require a party to establish exceptional circumstances before a judicial discretion can be exercised in favour of that party. Formulation of such a test, in my opinion, would be inconsistent with the Rules of Court. The Rules of Court do not provide that a stay may only be granted in exceptional circumstances. Indeed they are silent as to the granting of a stay. In my opinion, in those circumstances the test should be no more than the ordinary considerations of justice. If justice requires the granting of a stay then it should be made. [citations omitted]
[9] [2001] SASC 212.
[10] Ibid, [69]-[70].
Rule 300(2) provides that the Court may grant a stay for a proper reason. In determining a proper reason, the Court will determine whether, having regard to all the circumstances, the justice of the case requires the making of such an order.[11]
[11] See Powerflex Services Pt Ltd v Data Access Corp (1996) 67 FCR 65; Duke Group Ltd v Pilmer (unreported, Supreme Court of South Australia, Mullighan J, 16 June 1998); Technilock (Aust) Pty Ltd v Mondami Pty Ltd [1999] SASC 94; Bartley v Myers [2001] SASC 212.
The Court will have regard to what is fair in the circumstances of the case. In so doing, the Court must balance the interests of the parties and have regard to the balance of convenience.
Will the appeal be rendered nugatory?
Various properties, the subject of the orders for possession, have been in the Tiver family for a number of generations. The defendants submit that if some or all of the properties are sold their position will be irretrievable, as they will be unable to reconstruct their position if the appeal is successful. They submit that their appeal will be rendered nugatory, as they will be unable to replace what has been lost.
There may be instances in which a particular property may have a special significance to the mortgagor. In the usual case, that alone does not justify an order that a mortgagee be prevented from exercising its powers of possession or sale.
One factor to be considered is whether the defendants are able to purchase land in the Burra area to enable them to resume their farming business. Mr Stevens submits that, in the valuation report of Mr Wapper, reference is made to only three comparable sales. He submits that this establishes that land in the area is tightly held and not readily available on the market. Mr Wapper expressed no opinion about the availability of properties in the area. It does not follow that, because he refers to three sales only, Mr Stevens’ contention is correct.
If the defendants were successful in their appeal, they would be entitled to be repaid the proceeds of sale. There is no evidence that if they were reimbursed they would be unable to purchase property in the Burra area to recommence their farming business.
I am not satisfied that, if the defendants' appeal is successful and any property has been sold, the defendants would be unable to purchase property in the Burra area and resume their farming business.
The plaintiff’s ability to repay
The plaintiff is a large commercial entity. It is not disputed that the plaintiff has net assets of $165,110,000 as at 30 June 2008. Mr Stevens submits that I should have regard to the current world financial crisis and conclude that it does not follow from the net asset position of the plaintiff that it would be able to repay any amount it receives from the sale of the properties. He submits that I should have regard to the general position of financiers in the current financial crisis, where many have worthless loans on their books which have not been written off and which have been packaged into financial instruments.
There is no evidence to support Mr Stevens’ contention that the plaintiff is not financially able to repay any monies it has received, or will receive, in satisfaction of the judgment debt. In my view, his submission is based on mere speculation. If the plaintiff does not exercise its power of sale, then the subject land will be preserved and remain in its possession. If, on the other hand, the properties, or some of the properties, are sold, I am satisfied that the plaintiff will be able to repay any monies received by it, if so ordered. In those circumstances, I am not satisfied that the defendants would be unable to purchase properties in the Burra area and resume their farming business.
I reject the defendants' contention that the appeal will be rendered nugatory if a stay is not granted.
The appeal
The notice of appeal discloses some 25 grounds. The first seven grounds appear to be the primary grounds on which the appeal is based with the remaining grounds being subsidiary or more particular grounds. It is convenient to list the grounds:
1.The learned trial judge’s failure to observe or alternatively to take into account the great discrepancy in power and influence and financial capacity between plaintiff and the defendants to the detriment of the defendants.
2.The learned trial judge’s failure to recognise that the defendants had no intention or obligation to convert land practice from dairying to broad acre crop farming.
3.The learned trial judge’s failure to take into account the knowledge the plaintiffs had or should have had by exercise of reasonable diligence that the cropping of the land was not a viable or profitable enterprise from the outset.
4.The learned trial judge’s failure to take into effect the fact that the defendants would be obliged to acquire or purchase cropping plant and equipment to carry out the cropping program set by the plaintiffs.
5.The learned trial judge’s failure to recognise the inexpertness of the unqualified agronomist appointed by the plaintiff to oversee and his faulty advice on the cropping program insisted on by the plaintiff.
6.The learned trial judge’s failure to recognise or to refer to the ulterior motive of the plaintiff of having valuations made reflecting a much greater value of the defendants’ land over a relatively short period of time.
7.The learned trial judge’s failure to recognise or deal with the fact that the plaintiff had a substantial material interest in advancing to the defendants further substantial sums of money to gain profits for the plaintiff arising out of continuing purchases of goods and cropping supplies from the plaintiff.
Further Grounds of Appeal:
8.The learned trial judge erroneously gave judgment for the plaintiffs notwithstanding no enforceable stock and crop mortgages.
9.The learned trial judge failed to take into account that there were no oral or other terms in the facility agreement between the parties based on conduct of the plaintiffs and oral discussions and agreements between the agents for the plaintiff and the defendants or their representatives.
10.The learned trial judge erroneously held that there was no unconscionable conduct by the plaintiff or that the plaintiff engaged in misleading and deceptive conduct towards the defendants.
11.The learned trial judge failed to take into account the evidence given by the witnesses for the plaintiff relating to agronomic advice provided by the plaintiff to the defendants.
12.The learned trial judge failed to appreciate the evidence relating to the poor or wrongful agronomic advice given from time to time by the plaintiff’s agronomists which advice the defendants were obliged to follow and which produced losses to the defendants.
13.The learned trial judge erroneously found and decided that the defendants were not at a special disadvantage when entering into the Facility Agreement.
14.The learned trial judge erroneously decided that there was no breach of the Fair Trading Act (SA), the Trade Practices Act 1974 and the Australian Securities and Investment Commission Act 23001 [sic] by the plaintiff and that the plaintiff acted unconscionably with regard to conduct and financial and other advice to the defendants.
15.The learned trial judge erroneously held that the plaintiff took no advantage of or acted contrary to principles of equity or engaged in misleading and deceptive conduct with respect to the defendants in respect of agronomic or other advice to or demands on the defendants.
16.The learned trial judge erroneously held that the plaintiff was an arm’s length provider of finance to the defendants.
17.The learned trial judge erroneously held that the plaintiff’s agronomic advice to the defendants was not followed by the defendants and that the defendants failed to prove negligence of the plaintiff in providing agronomic advice.
18.The learned trial judge erroneously and in conflict of clear evidence received by the Court that the defendants had proved no loss or damage arising out of the actions and conduct of the plaintiff towards the defendants.
19.The learned trial judge failed to apply equity principles to the plaintiff’s conduct towards the defendants, as the plaintiff did not enter into any agreement with the defendants with clean hands and otherwise failed in its equitable duty of care owed to the defendants.
20.The learned trial judge erroneously held that the solicitors acting for both plaintiff and defendants without the knowledge of the defendants in a conflict of interest both prior to, during and subsequently against the plaintiff.
21.The learned trial judge erroneously rejected evidence of the highly qualified witness namely, IAIN ABERDEEN as to the losses and damages suffered by the defendants as a result of the plaintiff’s advice directions and demands by the plaintiff.
22.The learned trial judge failed to recognise the said IAIN ABERDEEN as a fully qualified agronomist in spite of his University qualifications as a degreed graduate in agriculture.
23.The learned trial judge wrongly dismissed the evidence of the said IAIN ABERDEEN notwithstanding the detailed calculations submitted and placed on record in the evidence produced by the defendants to the Court.
24.The learned trial judge failed to observe or consider the ulterior motives of the plaintiff in producing rapidly increasing valuations in short terms of the defendants’ lands and wrongly concluded that they were flawed valuations because of their failure to relate to other sales of land comparable to the lands of the defendants.
25.Generally throughout his hearing of the trial constantly referred to the defendants “having no case” and requiring to produce accounting evidence and agronomic evidence both of which matters were adequately dealt with by the said Iain Aberdeen.
The plaintiff submits that the appeal is bound to fail. Mr Stevens indicated the defendants may seek to amend their grounds of appeal. No detail of any proposed amendments have been provided.
In considering whether a stay is to be granted, a factor to which the Court will have regard is whether the defendants have an arguable case. Mr Abbott submits that the grounds of appeal are unarguable. Mr Stevens accepts that a number of the grounds of appeal require redrafting. Many of the grounds are in direct conflict with the evidence presented at trial, and sometimes misstate the evidence so as to provide the premise for the ground of appeal. Many grounds misunderstand the findings recorded in the judgment. Furthermore, even if the defendants were successful in respect of a number of grounds of appeal, it is not clear that such success would result in any reduction, or substantial reduction, of the judgment sum.
Many of the grounds of appeal seek to overturn findings of fact. They simply allege that the findings are erroneous. No basis for alleging error is provided. Appeals against findings of fact are notoriously difficult unless the trial Judge has made an obvious material error. The grounds of appeal do not identify any clear error in the determination of the facts.
John Tiver deposes that the counterclaim of the defendants is $18 million. That was not the defendants' position at trial, nor is there evidence to support that contention. The grounds of appeal fail to identify the orders which are sought if any of the grounds are upheld.
Although there are difficulties in assessing the merits of an appeal without the benefit of detailed argument, none of the grounds of appeal suggest that the defendants have a strong arguable case.
Hardship
John Tiver deposes that there are currently five families resident on the properties. Equipment and other personal items will need to be removed from the properties. Mr Stevens submits undue hardship will be caused to the defendants, and others who reside on the properties, if a stay is not granted.
In many instances when a mortgagee seeks to enforce its right to possession hardship will be caused to the mortgagor. The plaintiff is experiencing continuing prejudice. Ultimately, one of the factors which a court will consider is the competing prejudice and hardship experienced by the parties. It is only in exceptional circumstances that hardship to the mortgagor alone would justify the granting of a stay.
I am informed that the judgment and consequential orders have been served and, if this application is refused, then the plaintiff will be entitled to immediate possession.
Mr Stevens submits that the position the defendants confront if the application is refused is unreasonable. He submits that a stay should be granted to permit the defendants to vacate the properties in an orderly way. He submits that six weeks is a reasonable period. I indicated that I would hear the parties on that question in the event that I refused the application.
The defendants have failed to satisfy me that the justice of the case requires the granting of a stay. For the reasons given, I refuse the application.
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