Maio v City of Stirling

[2015] WASCA 254

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   MAIO -v- CITY OF STIRLING [2015] WASCA 254

CORAM:   BUSS JA

MURPHY JA

HEARD:   26 NOVEMBER 2015

DELIVERED          :   26 NOVEMBER 2015

PUBLISHED           :  11 DECEMBER 2015

FILE NO/S:   CACV 92 of 2015

BETWEEN:   GIROLAMO MAIO

First-named First Appellant

GLENYS JOY MAIO
Second-named First Appellant

JVR PTY LTD
Second Appellant

LINEMARK INVESTMENTS PTY LTD
Third Appellant

THE OWNERS OF STIRLING VILLAGE STRATA PLAN NO 11718
Fourth Appellant

AND

CITY OF STIRLING
First Respondent

VALMARL PTY LTD
First-named Second Respondent

PETER GRAHAM HEARN
Second-named Second Respondent

BANK OF QUEENSLAND
Third Respondent

RAINWAVE NOMINEES PTY LTD
Fourth Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :LE MIERE J

Citation  :MAIO -v- CITY OF STIRLING [No 2] [2015] WASC 189

File No  :CIV 2706 of 2013

Catchwords:

Practice and procedure - Application for a stay of primary court's orders in relation to removal of a caveat - Whether caveat should be extended pending determination of the appeal - Appellants claiming certain proprietary rights over second respondents' land - Second respondents entered into contract to sell land to fourth respondent - Relevant considerations - Competing considerations in relation to balance of convenience - Undertaking as to damages

Legislation:

Supreme Court (Court of Appeal) Rules 2005 (WA), r 44(1)

Result:

Application granted

Category:    B

Representation:

Counsel:

First-named First Appellant             :        Mr J Thomson SC

Second-named First Appellant     :        Mr J Thomson SC

Second Appellant               :        Mr J Thomson SC

Third Appellant               :        Mr J Thomson SC

Fourth Appellant               :        Mr J Thomson SC

First Respondent               :        Mr P Wittkuhn

First-named Second Respondent         :        Mr C G Colvin SC

Second-named Second Respondent       :        Mr C G Colvin SC

Third Respondent               :        No appearance

Fourth Respondent               :        No appearance

Solicitors:

First-named First Appellant             :        Haydn Robinson

Second-named First Appellant     :        Haydn Robinson

Second Appellant               :        Haydn Robinson

Third Appellant               :        Haydn Robinson

Fourth Appellant               :        Haydn Robinson

First Respondent               :        McLeods Barristers & Solicitors

First-named Second Respondent         :        Hotchkin Hanly Lawyers

Second-named Second Respondent       :        Hotchkin Hanly Lawyers

Third Respondent               :        No appearance

Fourth Respondent               :        Hotchkin Hanly Lawyers

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

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

Maio v City of Stirling [No 2] [2015] WASC 189

Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168

REASONS OF THE COURT:   

Introduction

1. On 26 November 2015, the court heard an application for a stay by the appellants against an order of Le Miere J to the effect that the first appellants (Mr and Mrs Maio) remove a caveat, registered number M690116 (appellants' caveat) against certain land which may, for present purposes, be described as lot 604.

2. The primary judge's orders were made on 17 November 2015 in CIV 2706 of 2013 (primary proceedings).

3. In general terms, as explained in more detail below, lot 604 is adjacent to other land previously known as lot 602 (lot 602).  Lot 602 was subsequently divided under a strata plan into strata lots.  A shopping centre was established on one of the lots, which is now owned by Mr and Mrs Maio. 

4. In broad terms, the appellants' caveat was lodged, and the appellants commenced the primary proceedings, to seek to vindicate their claims that they had certain proprietary rights to use part of lot 604 for parking for the shopping centre on lot 602.  The appellants sued (amongst others) the second respondents who are the current registered proprietors of lot 604.  The second respondents have entered into a contract to sell lot 604 to the fourth respondent (Rainwave).

5. The primary judge dismissed the appellants' claims pursuant to reasons for judgment delivered on 29 May 2015.[1]  On 29 May 2015, his Honour ordered, amongst other things, that the appellants' action be dismissed and that the second respondents have liberty to apply for an order requiring the appellants to remove the appellants' caveat if they had not done so by 5 June 2015.

   [1] Maio v City of Stirling [No 2] [2015] WASC 189 (primary reasons).

6. The appellants' caveat was not removed by 5 June 2015.

7. On 8 June 2015, the appellants filed a notice of appeal against the primary judge's decision.  The parties have since filed their respective cases in the appeal.

8. In the meantime, pursuant to the liberty to apply referred to in [5] above, on or about 30 October 2015, the second respondents applied for orders requiring the appellants to remove the appellants' caveat.  After hearing submissions, Le Miere J made the order referred to earlier, namely that the appellants remove the appellants' caveat.  His Honour ordered that the removal occur, in effect, by 27 November 2015.

9. The appellants applied for a stay in this court by application dated 19 November 2015 and, as noted earlier, the stay application was heard on 26 November 2015.

10. Following the hearing on 26 November 2015, the court made orders in effect extending the time for compliance with Le Miere J's orders for the removal of the appellants' caveat, pending the determination of the appeal.  These are our reasons for that decision.

Background[2]

[2] The background is taken from the primary reasons, unless otherwise indicated.

1. In 1982 the City of Stirling (City) sold certain land on the corner of Cedric and Sanderling Streets, Stirling, to parties who may be described as the 'Original Owner'.

2. Between 1982 and May 1983, a shopping centre was built on that part of the land which became lot 602.  The land was subdivided in 1983 into lots 602, 603 and 604.

3. In approving the subdivision, the Town Planning Board required the Original Owner to enter into an agreement with the City to ensure reciprocal car parking rights existed between the shopping centre on lot 602, and any future development of lot 604.  The agreement was executed in 1983 as a deed (1983 deed).

4. In August 1983, lot 602 was subdivided into 11 strata lots, and the certificate of title for lot 602 was cancelled. Mr and Mrs Maio are the current registered proprietors of lot 6, on which the supermarket is situated. The second appellant, JVR Pty Ltd (JVR), is the registered proprietor of lots 1 and 2 on the strata plan. The third appellant, Linemark Investments Pty Ltd (Linemark), is the tenant of lot 6. Mr and Mrs Maio are the sole shareholders and directors of JVR and Linemark. Mr and Mrs Maio, or their companies, control a majority of units under the strata plan. The fourth appellant is the strata company for the strata plan and sues as representative of the proprietors of the lots in the strata plan pursuant to s 33(1) of the Strata Titles Act 1985 (WA).

5. The second respondents and a Mr Bogle became registered proprietors of lot 604 in August 2006.  At that time, the second respondents and Mr Bogle executed a Transferee's Assumption Deed with the City (2006 deed).

6. The second respondents acquired Mr Bogle's interest in lot 604 in 2010.  The second respondents mortgaged their interest in lot 604 to the third respondent (bank).  The second respondents, the bank and the City entered into a Transferee's and Mortgagee's Assumption Deed in 2010 (2010 deed).  By cl 2 of the 2010 deed, the transferees (the second respondents) agreed with the City that they would observe and perform the provisions of the 1983 deed on the part of the Original Owner (the 2006 deed had contained a provision to similar effect).

7. On 18 October 2010, the City lodged a caveat against the title to lot 604, claiming an interest in lot 604 pursuant to the 2010 deed (the City's Caveat).[3]

   [3] Mr Robinson's affidavit, 19 November 2015, page 10.

8. On 30 June 2014, the appellants lodged the appellants' caveat over lot 604.  They claimed an interest in lot 604 under the 1983 deed, the 2010 deed and s 11(1) or s 11(2) of the Property Law Act 1969 (WA) (PLA).

9. On 8 August 2014, the second respondents entered into a contract for sale with the fourth respondent, Rainwave, under which Rainwave agreed to purchase lot 604 conditional upon the title to lot 604 being clear of any caveats lodged by a third party other than the City.  The purchase price was $2.5 million.

10. By Special Condition 1(a), the contract for sale was subject to and conditional upon the title to lot 604 being clear of, relevantly, the appellants' caveat within 90 days of acceptance by the second respondents of Rainwave's offer.  The second respondents accepted the offer on 8 August 2014.

11. On 25 September 2015, the second respondents and Rainwave agreed to vary the contract for sale by extending the date on which the title to lot 604 had to be clear of, relevantly, the appellants' caveat to 30 November 2015.

12. Rainwave proposes to develop lot 604.  The proposed development is a three storey mixed use building consisting of 12 office tenancies and 34 dwellings.  The development does not provide for unrestricted access by persons and vehicles to and from lots 604 and 602.

13. The appellants are concerned that if lot 604 is developed in accordance with the development approval, it will interfere with access over lot 604 and the use of the car parking bays on lot 604 by the owners, tenants and customers of the shopping centre on lot 602.  The appellants' objective appears to be to prevent any development of lot 604 which would interfere with the access over lot 604, and the use of parking bays on lot 604, which are currently enjoyed by the owners, tenants and customers of the shopping centre.

The 1983 deed

1. The 1983 deed provides that the Original Owner covenants with the City, as follows:

   [2](a)      … not to use or develop Lot 604 without the consent in writing of the [City] …;

   (b)not to suffer or allow vehicular access to or egress from Lot 604 from or to Cedric Street;

   (c)in carrying out any development of Lot 604 to ensure that … any such development of Lot 604 and the existing shopping centre on Lot 602 have the appearance of a single complex;

   (d)not to erect or permit to be erected a fence on or about the common or dividing boundaries of Lots 602 and 604 or … otherwise obstruct or impede the free movement and thoroughfare of persons and vehicles on either of those lots or from one lot to the other;

   (e)upon the sale or transfer of either Lot 602 or Lot 604 to grant to the purchaser thereof and the successors in title, tenants, invitees, licensees, customers and visitors of such purchaser and all other persons lawfully entering the lot sold the right to use for the purpose of parking motor vehicles the car parking areas situated on the unsold lot together with full and unrestricted access from one lot to the other … and to reserve to the [Original] Owner as owner of the unsold lot and their respective successors in title, tenants, invitees, licensees, customers and visitors and all other persons lawfully entering the unsold lot the right to use for the purpose of parking motor vehicles the car parking areas situated on the sold lot together with full and unrestricted access from one lot to the other … such grant and reservations to contain covenants on the part of the [Original] Owner and the transferee of the sold lot with the [City] as follows -

   (i)not to erect or permit to be erected a fence on or about the common or dividing boundaries of Lots 602 and 604 or … otherwise obstruct or impede the free movement … on either of those lots or from one lot to the other;

   (ii)not to surrender, revoke or otherwise terminate or attempt to surrender, revoke or otherwise terminate the rights contained in the abovementioned grant and reservation … without the prior written consent of the [City]; and

   (iii)not to sell, agree to sell, transfer or otherwise dispose of the lots … to any other person unless that person has first entered into a deed of covenant with the other parties hereto (including the [City]) to observe and perform the provisions of this Deed …;

   (f)forthwith to obtain the unconditional written consent to … this Deed of any person entitled to an encumbrance on the subject land …; and

   (g)not to sell, agree to sell, transfer, mortgage, charge or assign Lot 604 … unless the person to whom any such right or interest to or in Lot 604 is to be granted has first executed a deed of covenant to be prepared by the [City's] solicitors … whereby that person covenants to observe and perform all the covenants, conditions and stipulations herein contained (including this present covenant) in like manner as if he had been a party to this Deed.

The 2010 deed

1. The 2010 deed was entered into by the City, the second respondents as transferee, and the bank.  There were recitals to the effect that Mr Bogle desires to transfer his share in lot 604 to the second respondents, and the second respondents have agreed to execute the deed; by executing the deed the second respondents agree to be bound by the terms of the 1983 deed; and that the second respondents desire to mortgage lot 604 to the bank and the bank has agreed to execute the deed.

2. Clause 2 provides:

   The Transferee agrees with the [City] that the Transferee will duly and punctually observe and perform all the provisions of the [1983 deed] on the part of the Original Owner, to be observed and performed in like manner as if the Transferee had been named as the Original Owner, in the [1983 deed].

3. Clause 3 provides:

   The Transferee hereby charges [lot 604] in favour of the [City] for the purpose of securing the due and punctual observance and performance by the Transferee of the provisions of this document and of the [1983 deed] on the Transferee's part to be performed and observed and authorises the [City] to lodge an absolute caveat pursuant to the Transfer of Land Act 1893 against the certificate of title to [lot 604] in order to protect the rights and interests of the [City] under this document.

4. Clause 4 provides:

   The [bank] agrees with the [City] that:

   (a)should the [bank] pursuant to the mortgage exercise its rights to deal with [lot 604] … the [bank] shall perform and observe the provisions of this document and of the [1983 deed] on the Transferee's part to be performed and observed in like manner as if the [bank] was named in this document as the Transferee and in the [1983 deed] as the Original Owner; and

   (b)the [bank] will not sell [lot 604] in exercise of its power of sale without at the same time obtaining the execution of an agreement between the proposed purchaser and the [City] whereby the proposed purchaser agrees to perform and observe the provisions of this document and of the [1983 deed] on the part of the Transferee and the Original Owner, respectively, to be performed and observed; and

   (c)the [bank] will not assign the Mortgage or any of its rights thereunder without first procuring the execution by the proposed assignee of an agreement between the proposed assignee and the [City] whereby the proposed assignee agrees to perform and observe the provisions of this document on the part of the [bank] to be performed and observed.

The appellants' claims in the primary proceedings and the judge's reasons

1. In the primary proceedings, the appellants claimed that:

   (a)the 1983 deed and the 2010 deed had granted to the appellants the benefits granted by the 1983 deed and in particular, the rights of access and egress and parking on lot 604, having regard to the operation of s 11(1), or alternatively s 11(2), of the PLA; alternatively

   (b)lot 604 is subject to a restrictive covenant in terms of cl 2(d) and cl 2(g) of the 1983 deed; alternatively

   (c)the appellants, their tenants, invitees, licensees, customers and visitors, have rights by way of easements acquired by enjoyment or user under the doctrine of lost modern grant, or under the Prescription Act 1832 (WA).

2. As to the first claim, the primary judge found that the 2010 deed, read with the 1983 deed, was, on its proper construction, not a deed which 'expressly in its terms purports to confer a benefit directly' on the appellants within the meaning of s 11(2) of the PLA.[4]  His Honour also found that s 11(1) of the PLA had no application.[5]

   [4] Primary reasons [38] ‑ [43].

   [5] Primary reasons [35] ‑ [37].

3. As to the second claim, the primary judge found that the 1983 deed did not give rise to restrictive covenants enforceable in equity because the covenantee was the City, and the covenants did not touch and concern the land of the City.[6]

   [6] Primary reasons [45] ‑ [47].

4. As to the third claim, the judge found that there had been continuous and uninterrupted use of an area of lot 604 (Use Area) by occupiers of and visitors to the supermarket sufficient to give rise to an easement by prescription in favour of the registered proprietor of the land on which the supermarket is located, ie, Mr and Mrs Maio.[7]  However, his Honour found that the use was not 'as of right', but by implied licence or permission from the owners of lot 604, and that accordingly the claim based on an easement by prescription should be dismissed.[8]

   [7] Primary reasons [67].

   [8] Primary reasons [92].

The appeal

1. By their grounds of appeal, the appellants challenge the judge's findings in relation to the proper construction of the 2010 deed read with the 1983 deed and its operation in the context of s 11(2) of the PLA.  The appellants also challenge the primary judge's findings on the question of the alleged easement.  There is no challenge to the primary judge's findings in relation to s 11(1) of the PLA or his findings in relation to the question of the alleged restrictive covenant.

The stay application

1. As noted earlier, the stay application was filed on 19 November 2015, supported by an affidavit sworn by the appellants' solicitor of the same date.  It sets out the history of the principal events and annexes a copy of the 1983 deed, the 2010 deed, the appellants' caveat and the City's caveat.

2. The appellants contended, in effect, that the appeal will be rendered nugatory if no stay is granted in that Rainwave, if it purchases lot 604, will not be obliged to observe or perform the obligations contained in the 1983 deed, so that if the appellants were not to succeed on the arguments as to lost modern grant or prescriptive easement, the appellants will forever lose the rights of access which they have enjoyed on an uninterrupted basis since 1985.  The appellants also contended that any urgency in the removal of the appellants' caveat had been brought about by the second respondents, and that it had not been shown that there was any 'basis to extend the time for the satisfaction of the caveat condition to 30 November 2015'.[9]  The appellants also contended that there is no evidence that the second respondents cannot otherwise repay the bank, and that it is unclear whether the cause for delay in any settlement arises from the appellants' caveat or by the City's caveat, or for some other reason.

   [9] Appellants' written submissions par 10.

3. The second respondents relied upon an affidavit of Mr P G Hearn sworn 16 November 2015.  In that affidavit, Mr Hearn annexed a copy of the contract of sale to Rainwave dated 8 August 2014, and the variation dated 25 September 2015.  As we have mentioned, there was a special condition in the original contract for sale to the effect that the title to lot 604 was to be clear of any third party caveats, other than the City's caveat, within 90 days of the contract being entered into and the effect of the variation was to amend the time by which the title was to be cleared of any such caveats.  Under the variation, the title was to be cleared by 30 November 2015.

1. The affidavit also annexed a letter from the bank to the effect that the loan contract between the second respondents and the bank had expired and the full owing balance of the loan, repayable immediately, was $887,800.93.  The letter indicated that unless the facility was cleared by 17 November 2015, it would be transferred to the bank's Asset Management Group 'for commencement of recovery action as necessary'.  The correspondence from the bank indicates that both the first‑named second respondent (Valmarl Pty Ltd) and the second‑named second respondent (Mr Hearn) are liable to repay the amount due under the facility.

2. Mr Hearn also deposed that a director of Valmarl Pty Ltd (Valmarl) was negotiating with the bank to see if any facility can be made available.  However, the terms of any refinancing are yet to be established.  In the meantime, the second respondents are paying an additional 4% rate of interest as a default rate.

3. Mr Hearn also deposed, in effect, that the existing loan was to be discharged from the sale proceeds of lot 604; that if the bank referred the loan for collection, the second respondents would need to refinance the debt; that lot 604 could not readily be mortgaged to any new financier because of the appellants' caveat; and that if the second respondents were unable to have the appellants' caveat removed by 30 November 2015, Rainwave would be entitled to withdraw from the sale.

4. Mr Hearn also deposed that his solicitor was in negotiations with the City in relation to the terms of a deed into which the incoming purchaser will enter with the City, and that those negotiations are ongoing.

5. The second respondents also relied on an affidavit of Mr Flynn dated 24 November 2015.  The affidavit annexes certain exhibits and transcripts from the trial.  The second respondents contended that the evidence indicates that under Rainwave's proposed development, a number of the car parking bays will be preserved, as will access and ingress to other car parking areas, for the benefit of the shopping centre.  Mr Flynn's affidavit also annexed a copy of a determination by the Metro North‑West Joint Development Assessment Panel (JDAP) dated 5 August 2014 in relation to Rainwave's proposed development.

6. The City filed submissions to the effect that the City was inclined to the view that it would preferable for there to be a replacement deed between it and the second respondents which is more tailored to the circumstances of the particular development that the JDAP had approved.  The City contended that the possibility existed that the City might agree to enter into a replacement deed with the second respondents in lieu of the 2010 deed. 

7. Hotchkin Hanly Lawyers act for both the second respondents and Rainwave in the appeal.  The second respondents were represented by senior counsel at the hearing of the stay application.  Rainwave chose not to appear on the application.

Principles

1. The appellants' application is made pursuant to r 44(1) of the Supreme Court (Court of Appeal) Rules 2005 (WA). For present purposes, the principles may be stated as follows:[10]

   (a)The successful litigant is ordinarily entitled to enforce a judgment pending the determination of any appeal.

   (b)It is for the applicant for a stay to move the court to a favourable exercise of its discretion.  This court will usually only make a suspension order if there are special circumstances that justify doing so.

   (c)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 or whether a refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal.  This may shortly be described as requiring the court to consider whether the right of appeal will be rendered nugatory if a stay is not granted.

   (d)If it can be demonstrated that the right of appeal will be rendered nugatory if a stay is not granted, the stay will generally still be refused unless it can be established that the appeal has ultimately reasonable prospects of success.

   (e)The stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted. 

   (f)Finally, the applicant's prospects are, to some extent, interdependent with the balance of convenience.

   [10] Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 [22]; Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308.

Disposition

1. The parties accepted that whilst the removal of the appellants' caveat would not affect the appellants' claims based on the alleged easement,[11] the proprietary interests claimed by the appellants based on the 1983 deed and the 2010 deed would effectively be lost if they were ultimately to succeed in the appeal, but the stay were not granted, and Rainwave became registered proprietor in the interim.  To that extent, an important part of the appeal would be rendered nugatory if the stay were not granted.

   [11] Reference was made to s 68(1A) of the Transfer of Land Act 1893 (WA).

2. It may be accepted for present purposes that the appeal is at least reasonably arguable. 

3. The balance of convenience raises competing considerations which are not easily resolved.  Overall, however, we were inclined to the view that the balance of convenience favours the appellants for the following reasons.  First, the appellants are asserting proprietary interests in lot 604.  The rights asserted by the appellants include the right to the use of 15 car bays on lot 604.  Whilst there appears to be some evidence that under the current development proposals by Rainwave, the owners of lot 602 will have certain access to lot 604, including for car parking, we were not persuaded, for the purposes of this application, that any benefits in that regard would be as extensive as those claimed by the appellants under the 1983 deed and the 2010 deed.  Secondly, the judge found as a fact that the crossover and car bays on lot 604 were of 'substantial practical benefit' to the owners of lots on lot 602.[12]  Thirdly, insofar as the second respondents contend that the appellants' rights may be adequately protected through the operation of the planning laws, the appellants' rights are undoubtedly better secured to the extent that they can establish a proprietary interest in lot 604.  Fourthly, whilst the special condition under the varied contract for sale requires, in effect, the appellants' caveat to be removed by 30 November 2015, Rainwave did not participate in the hearing of the stay application and there was no evidence to the effect that it would terminate the contract if the appellants' caveat were not removed by then.  It is also of some significance in this context that Rainwave did not terminate the contract when it had the opportunity to do so under the terms of the original contract for non‑fulfilment of the special condition.  Whilst there was a risk that Rainwave might terminate if the 30 November 2015 contractual deadline were not met, it could not be inferred that that was the likelihood.

   [12] Primary reasons [99].

4. Fifthly, in relation to the second respondents' banking arrangements, senior counsel for the second respondents informed the court that the issue was not so much that a refinancing could not likely be obtained, but rather that it could only be obtained at additional cost. 

5. Sixthly, in relation to any losses that may be suffered by the second (and fourth) respondents as a consequence of the grant of the stay, the first, second and third appellants provided written undertakings as to damages.  The appellants have also provided an affidavit of Mr Maio sworn 26 November 2015 as to the financial condition of the first appellants.  The second respondents did not take issue with the form of the undertakings, nor contend that the undertakings had no real value.  Mr Maio's affidavit demonstrates that the undertakings have substantial value.  Also in relation to the second respondents' holding costs, the effects of any delay may be ameliorated, at least to some extent, by this court ordering that the appeal be listed on an expedited basis. 

6. In all the circumstances of this case, we concluded that it was in the interests of justice to grant, in substance, a stay, but in terms of an extension of time for compliance with Le Miere J's order.

7. Accordingly, we made the following orders:

   1.Upon:

   (a)the appellants' application in the appeal filed 19 November 2015; and

   (b)the first, second and third appellants undertaking to the Court that they will pay to the second respondents and the fourth respondent such compensation for the second respondents and the fourth respondent being affected by an extension of the time for compliance by the first appellants with par 1 of the orders made by the Honourable Justice Le Miere on 17 November 2015 in CIV 2706 of 2013 as the Court may in its discretion consider in the circumstances to be just, such compensation to be assessed by the Court or in accordance with such directions as the Court may make and to be paid in such manner as the Court may direct,

   the time for compliance by the first appellants with par 1 of those orders is extended until 4.00 pm on the date of determination of the appeal or further order.

   2.The costs of the appellants' application in the appeal filed 19 November 2015 are reserved.

   3.The hearing of the appeal is expedited.

   4.Each of the parties has liberty to apply in relation to par 1 of these orders on 48 hours' notice to the other parties.

8. The appeal has been listed for hearing on 27 January 2016.