Mladen Ninkov as trustee of the Frick Trust v McKail - [2025] WASCA 138

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   MLADEN NINKOV as trustee of the FRICK TRUST -v- MCKAIL [2025] WASCA 138
CORAM:   VAUGHAN JA
HALL JA

HEARD:   12 SEPTEMBER 2025
DELIVERED          :   12 SEPTEMBER 2025
PUBLISHED           :   12 SEPTEMBER 2025
FILE NO/S:   CACV 56 of 2025
BETWEEN:   MLADEN NINKOV as trustee of the FRICK TRUST
Appellant
AND
ALAN IAN MCKAIL
Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   GETHING J
Citation: NINKOV -v- MCKAIL [2025] WASC 257
File Number            :   CIV 2284 of 2024

Catchwords:

Appeal - Practice and procedure - Application for stay of mandatory injunction to remove pergola - Whether refusal of stay would render appeal nugatory - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Appellant	:	M L Bennett & J B Lock
Respondent	:	G R Donaldson SC

Solicitors:

Appellant	:	Bennett
Respondent	:	McLeod Fisher & Hamdorf

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

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Ninkov v McKail [2025] WASC 257
Sino Iron Pty Ltd v Mineralogy Pty Ltd [2023] WASCA 96
Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168

REASONS OF THE COURT:

On 12 September 2025, the court sat pursuant to a registrar's notice to attend dated 1 September 2025 to hear the respondent's application in an appeal filed 28 August 2025 seeking to stay order 1 of the orders made by Gething J in Supreme Court action CIV 2284 of 2024 on 30 June 2025. Senior counsel for the respondent accepted before the court that the application ought to be dismissed. The court accepted that concession and made an order dismissing the application. We informed the parties that we would produce written reasons for the dismissal of the application. These are those reasons.
The respondent's application was supported by the affidavit of Christoper Harold sworn 27 August 2025. Mr Harold is one of the lawyers representing the respondent.
The primary proceedings concern a restrictive covenant. The appellant and the respondent own neighbouring properties in Dalkeith. Both properties have views of the Swan River. The appellant's property is further away from the river than the respondent's property and looks over and through the respondent's property. The respondent's property is burdened by a restrictive covenant in favour of the appellant's property. Relevantly, cl 1(c) of the restrictive covenant has the effect that the respondent must not without the prior written consent of the appellant:
construct or erect or permit the construction or erection of any future building or extension of any part of any existing building or structure on the Burdened Land [ie the respondent's property] to be made or to remain upon that part of the Burdened Land coloured green on the plan annexed hereto ('the Restricted Area').
In 2024 the respondent commenced various works in the Restricted Area. The respondent did not seek and did not obtain the appellant's prior written consent to those works. The works consisted of a louvered pergola, an above ground swimming pool, a 2650 mm high wall and a set of steps leading to the pool. The appellant brought proceedings in the General Division of this court alleging that the works breached the terms of the restrictive covenant. The proceedings were tried by the primary judge on 27 and 28 May 2025. The primary judge delivered written reasons for decision on 30 June 2025: Ninkov v McKail.[1]
[1] Ninkov v McKail [2025] WASC 257.
The primary judge identified an available constructional choice arising from the text of cl 1(c) of the restrictive covenant [179] ‑ [180]. This, in substance, concerned the words 'extension of any part of any existing building or structure on the Burdened Land'. The words might be read and construed as a composite phrase (his Honour's 'Interpretation B'). Alternatively, they might be read and construed as being made up of component parts, namely either an 'extension of any part of any existing building' or a 'structure' (his Honour's 'Interpretation A'). In the latter case the word 'extension' did not qualify the term 'structure'. At trial the appellant contended for Interpretation A; the respondent contended for Interpretation B. The primary judge accepted the respondent's preferred construction [182] ‑ [188]. Other constructional issues arose as to the terms 'building' and 'extension'. However, the primary judge's resolution of those issues is not challenged in the appeal.
The primary judge then applied cl 1(c), as so construed, to the facts to determine whether the works undertaken by the respondent were in breach of the restrictive covenant. His Honour concluded that:
1.The respondent breached cl 1(c) in constructing the pergola, it being 'an extension of the existing building on the Burdened Land' (ie the house) [6](b), [197] ‑ [208].
2.However, none of the pool, the wall nor the pool steps were constructed in breach of the restrictive covenant [6](a), [209] ‑ [232].
Accordingly, the primary judge only considered the relief to be provided to the appellant by reference to the pergola. His Honour was satisfied that the appellant was entitled to a mandatory injunction requiring the respondent to remove the pergola. In reaching that conclusion the primary judge made two findings that are relevant to the present application. First, the respondent spent $20,000 on the construction of the pergola [45](b), [281]. Second, it would cost the respondent $5,000 to demolish the pergola [281] (see also [69]). For the purpose of the stay application before the court the respondent obtained a quotation to remove the pergola. The cost will be $7,013 rather than $5,000. See attachment 'CDH-6' to Mr Harold's affidavit.
Judgment was entered for the appellant providing for orders that:
1.The [respondent] is enjoined to remove the louvered pergola situated on the area of the restrictive covenant … before 29 August 2025.
2.There be liberty for the parties to apply in relation to the injunction in paragraph 1, with the liberty to be exercised before 28 August 2025[.]
The respondent contends that order 2 was in that form so as to allow the parties to confer in an attempt to reach an amicable resolution so that the pergola could be retained in an altered form. Whether that is so does not matter. On 7 July 2025 the respondent, by his solicitors, proposed alterations to the appellant. See attachment 'CDH-2' to Mr Harold's affidavit. That overture was rebuffed in peremptory terms on 11 July 2025. At the same time the appellant foreshadowed an intention to appeal the primary judge's decision. See attachment 'CDH‑3' to Mr Harold's affidavit. On 15 July 2025 the appellant commenced this appeal. The respondent then applied to the primary judge to stay the order requiring removal of the pergola. On 11 August 2025 the primary judge extended the time for compliance with order 1 pending an application for a stay to this court (such order to lapse if the application was not made by 29 August 2025).
The appellant relies on two grounds of appeal. By ground 1 the appellant contends that the primary judge erred in law in construing cl 1(c) of the restrictive covenant as limiting the restriction to an extension of an existing building or structure within the Restricted Area. In substance the appellant continues to contend for Interpretation A. Ground 2 raises a separate point as to the wall. The appellant contends that the works in relation to the wall were in breach of cl 1(c) even on the construction adopted by the primary judge.
In his orders wanted, the appellant seeks a declaration as to the proper construction of cl 1(c) and an injunction requiring the appellant to remove all the works - including the pergola - within 15 days.
The respondent has not commenced an appeal from order 1 made on 30 June 2025 requiring him to remove the pergola. Nor has the respondent cross-appealed in the appellant's appeal. The only challenge to the primary decision is the appellant's appeal. The appellant's appeal is effectively targeted at those aspects of the primary decision on which the appellant lost at trial. In this court the appellant seeks additional relief in relation to the pool, the wall and the pool steps. Nothing in the appellant's appeal could disturb the primary judge's conclusion that the appellant is entitled to a mandatory injunction requiring the respondent to remove the pergola. Whatever the outcome of the appeal there will be an order for removal of the pergola in some form.
At the hearing of the application, senior counsel for the respondent adverted to the possibility of the respondent filing an application for leave to file a cross-appeal. No such application was before the court at the time of the hearing. The application fell to be determined in the context of the appellant's appeal as presently constituted.
In contending that this court should stay the order requiring him to remove the pergola pending the determination of the appellant's appeal, the respondent submitted as follows in written submissions filed on his behalf:
1.The appellant was only partially successful at trial and only as to the pergola. This submission is undoubtedly correct. However, it goes nowhere in establishing the special circumstances that are required if this court is to order a stay.
2.The appellant has chosen to appeal the primary decision and has challenged the basis on which the order to remove the pergola was made. This submission is strictly true but misleading. The appellant challenges the construction of cl 1(c) that the primary judge relied on in finding that the pergola works breached the restrictive covenant. But, under the alternate construction contended for by the appellant on appeal, the pergola would equally be in breach of the restrictive covenant. Accordingly, this submission does not assist the respondent in seeking a stay of the order for removal of the pergola.
3.It is conceivable that a determination could be made on appeal that would allow the respondent to retain the pergola 'if some alteration is made to the structure'. What that alteration might be is unstated. Nor is there any explanation of the conceivable determination on appeal that might allow the respondent to retain the pergola. For the reasons already provided, none is readily apparent. In any case it is notable that the respondent has not undertaken to provide for such an alteration in a timely way. That is a material omission given that some two months has passed since the primary judge made the order for removal of the pergola.
4.Removal of the pergola will create practical difficulties for the respondent; its retention, pending appeal, will not prejudice the appellant. This submission is contentious. On the evidence there is no practical difficulty in removing the pergola. Removal can occur at a cost of $7,013. Removal of the pergola will only give rise to a marginal loss of amenity on the respondent's land. See primary decision [282]. In terms of prejudice to the appellant, in determining that the mandatory injunction should issue the primary judge made findings as to the ongoing interference with amenity that the pergola causes to the appellant's property. See primary decision [266] - [270] (see also [291]).
In addition to the foregoing matters, the respondent said that a stay is necessary to preserve the subject matter of the appeal and to avoid practical difficulties that may arise as an outcome of the appeal. The respondent contended that refusal of a stay is likely to render the appeal nugatory so far as it is related to the pergola.
The organising principles on which this court determines whether it will grant or refuse a stay are well established and apply equally to the various available sources of power to order a stay. See generally Eastland Technology Australia Pty Ltd v Whisson[2] and Tradesman Technologies Pty Ltd v Ameduri.[3] Broadly speaking, there are three primary considerations. First, whether a stay is necessary to preserve the subject matter of the appeal - ie whether, without the stay, the appeal might be rendered nugatory. In this respect the term 'nugatory' is used in the sense of indicating that a stay is necessary to preserve the subject matter or the integrity of the litigation or as indicating that, at the least, refusal of the stay could create practical difficulties in respect of the relief which may be granted on the appeal. Second, whether the appeal has reasonable prospects of success. Third, whether the balance of convenience favours the grant of the stay.
[2] Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9].
[3] Tradesman Technologies Pty Ltd v Ameduri [2012] WASCA 168 [22] - [23].
The central issue will generally be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation. In this respect, speaking broadly, the essential question is whether - having regard to the likely practical consequences as well as the legal consequences - the appeal will be futile unless a stay is granted: Sino Iron Pty Ltd v Mineralogy Pty Ltd.[4]
[4] Sino Iron Pty Ltd v Mineralogy Pty Ltd [2023] WASCA 96 [44] ‑ [45].
The present appeal on the part of the appellant will not be futile if the stay is refused and the respondent is compelled to remove the pergola. To the contrary, the appellant will proceed with the appeal because he wishes to achieve the same result - ie removal - in relation to the pool, the wall and the pool steps. Those works are the subject matter of the appeal rather than the pergola. In this respect the respondent's contention that refusal of a stay is likely to render the appeal nugatory so far as it is related to the pergola misses the point. The appeal, as presently constituted, is not concerned with the pergola. Nor is the appeal, as presently constituted, concerned with the primary judge's mandatory injunction requiring the respondent to remove the pergola.
For reasons already explained, while as a matter of form the terms of order 1 of the primary judge's orders may be substituted or varied if the appeal is successful, in substance nothing in the appeal, as presently constituted, will disturb the primary judge's order requiring removal of the pergola. Once this is understood there was no merit in the respondent's submission that a stay was necessary to preserve the subject matter of the appeal and to avoid practical difficulties that may arise as an outcome of the appeal. The appeal, as presently constituted, will not be rendered nugatory in the absence of a stay of the order requiring removal of the pergola.
The respondent failed on the central issue that he had to establish if there was to be a stay of order 1 of the primary judge's orders made 30 June 2025. It is, in the circumstances, not necessary to examine the balance of convenience. That said, given the view we take as to the subject matter of the appeal - and that whatever the outcome of the appeal, as presently constituted, there must be an order for removal of the pergola - the balance of convenience was firmly in favour of the appellant. The respondent simply sought to delay the inevitable.
The respondent's application in an appeal filed 28 August 2025 had to be dismissed. We made orders accordingly. Costs followed the event.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SD
Associate to the Hon Justice Vaughan
12 SEPTEMBER 2025