Londish, S. v Gulf Pacific Ltd

[1992] FCA 826

26 152

JUDGMENT No. ..8M........ ..m -- -

JU THE PEDERAt COURT

OF AUSTRALIA

NEW~~SOUTH WALES DISTRICT REGISTRY

fisw&L DIvIsro~ No. NG267 of 1991 L I

--

BETWEEN:

S . LONDISH

m:

GULF PACIFIC PTY. LIMITED AND ORq

MINUTES OF ORDEe

JUDGE W I N G ORDEe:	Cooper J.
yHI3FtB MADE:	Sydney
PATE OF ORDER:	22 October, 1992

.,

THE COURT ORDERS:

1.        That the application for the stay is dismissed.

2.        That the applicants pay the respondents costs, of and incidental to the application for stay to be taxed.

Note:	Settlement and entry of orders is dealt with in
Orde~  36 of the Federal Court Rules.

l

I	IN THE FEDERAL COURT
!	OF AUSTRALIA NEW SOUTH WALES DISTRICT REGISTRY
GE~E'&& DIVISION --

No. NG267 of 1991

. . .

&& ;~YIJ$I~~~&W%ZY:

Q- S . LONDISH

m:

GULF PACIFIC PTY. LIMITED AND ORS

lx2&iS:	Cooper J.
3zAB:	Sydney
E?Am:	22 October, 1992

EXTEMPORE REASONS FOR JUDGMENT

This is an application by the first, second and third respondents in action G267 of 1991 for an order that execution of the judgment given by his Honour Mr. Justice Wilcox on 15 October, 1992 against each of the respondents be stayed pending the determination of an appeal lodged by them this day. The applicants also seek an order that the appeal lodged by them be expedited and such further or other order as to the Court shall seem meet.

The judgment the subject of the appeal, and in respect of which the stay order is sought, gives judgment in favour of the applicant against each of the respondents in the sum of $1,015,312.00 together with the costs of the proceeding, including the notice of motion filed on 14 September, 1992. The judgment 16, therefore, a judgment for a money sum.
The Applicants submit that if a stay is not granted they will be prejudiced in that there is a risk that they may	- 7
be placed respectively in bankruptcy or in liquidation and in . ' "	.' .

rlr

such circumstance be denied an effective right of appeal. In support of the reality of such a prospect it is common ground that so far as the corporate applicants are concerned their financial position ia parlous and that the second respondent was found to be liable in proceedings in the Supreme Court of New South Wales on 12 August, 1992 to a company Bawofi Pty. Ltd. in a sum which upon assessment is liable to be in the vicinity of $617,000.00.

I was referred by counsel for the applicants to the decisions of the Court of Appeal in Alexander v. Cambridae credit Cor~oration Limited (1985) 2 NSWLR 685, particularly at 693; Jenninas Construction Limited v. Buraundv Rovale Investments Ptv Lirniteq (1986) 161 CLR 681, particularly at 685, and an unreported judgment of Mr. Justice Mahoney in Bond v. Hona Kona Bank of Australia Limited and others, Unreported 23 October 1991, CA40602/91.

I accept that those judgments support the proposition that it is not necessary to show special or exceptional circumstances in order to obtain a stay, pending an appeal. However, those cases also demonstrate to my mind that it is necessary that the discretion which I have under section 29 of the Federal Court Act be exercised judicially and on some proper basis. That is, the discretion is not one

I

at large or one to be exercised in an arbitrary fashion.

So far as the decision in Bond was concerned, there were in fact pending bankruptcy proceedings against the ,

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applicant at the time the stay was sought. That is not the case here. Further, in this case there is no evidence before me as to the personal circumstances of Mr. Londish at all, and as to whether or not any perceived threat of bankruptcy is real as opposed to imaginary.

The question really boils down to whether or not what I perceive to be the ordinary rule, namely that where the judgment is a judgment for a money sum, in the ordinary course a stay will not be ordered unless it can be shown that if the appellant succeeds on the appeal there is a real, as opposed to an imaginary risk, that the respondent to the appeal will be unable to repay the sum. There is no evidence of that in this case. That rule is really one expression of a broader rule that if it appears on credible evidence that to refuse a stay will render nugatory a right of appeal in an appellant, appropriate circumstances are made out for the granting of the

stay.

Here, when one analyses what is put, it really boils down to an argument that if there is a bankruptcy or winding up, the trustee in bankruptcy, or the liquidator, will take away from the appellants their personal right of appeal. In that sense it is suggested that those circumstances would render their rights of appeal nugatory. In reality, the rights of apdeal simply vest in the trustee or in the liquidator and can in an appropriate case be exercised as part of $$e due administration of the property of the person or the ,

company.

There is a more pressing reason why, in my view, it is inappropriate to look at the prospect of insolvency in isolation. There is the risk that to stay the judgment at this stage exposes the respondent to the possibility that others will execute against such assets as may be presently available for general execution to the prejudice of the respondents. It is on the whole a balancing process. It is submitted that if I make an order for expedition then the risk to the respondent from this application is reduced. However, there is no basis shown as to why an order for expedition ought to be made. It has not been shown that there is any urgency, or that there is any detriment or prejudice to the applicants, over and above any ordinary appellant in the same position as the applicants awaiting hearing of its appeal. Nor has it been shown why these applicants ought to displace

appeals heard.	other persons similarly waiting in this court to have their
In all of the circumstances I am not satisfied that an appropriate case for stay has been made out. The application for the stay is dismissed.
THE COURT ORDERS:
1. ~hatlthe application for the stay is dismissed.

That the applicants pay the respondents costs, of

and incidental to the application for stay to be :. , -r ,	8 .L
taxed.

To the extent that it is necessary I give leave to
the applicants to approach Mr. Justice Lockhart, the senior

judge responsible for the listing of appeals out of this

, registry, to renew the application for expedition of the

appeal.

I certify that this and the four ( 4 )

preceding pages are a true copy of the extempore reasons for judgment herein of the Honourable Mr. Justice Cooper.

Date: 6 November, 1992

&L'41Lid Z#! ~t/(t/("L""

Associate

Counsel for the Applicant:	Mr. Martin
Solicitors for the Applicant:	B. Robinson & Co.
Counsel for the Respondent:	Mr. R. Kaye
Solicitors for the Respondent:	Townsend & Partners
Date of Hearing:	22 October, 1992, Sydney