Rapid Roofing Pty Ltd & Ors v Natalise Pty Ltd & Ors

[2007] QCA 179

SUPREME COURT OF QUEENSLAND

CITATION:	Rapid Roofing Pty Ltd & Ors v Natalise Pty Ltd & Ors [2007] QCA 179
PARTIES:	RAPID ROOFING PTY LTD (ACN 088 568 165) (first plaintiff/first respondent) ALLAN LEO GEORGE ERNESTINE and MARY-ALISE PARQUETT ERNESTINE (second plaintiff/second respondent) v NATALISE PTY LTD (ACN 094 771 954) AS TRUSTEE FOR THE ST ANGE FAMILY TRUST (first defendant/ counter claimant/first appellant) JOSE ST ANGE and MICHELLE ST ANGE (second defendants/second counter claimants/ second appellants)
FILE NO/S:	Appeal No 8388 of 2006 DC No 115 of 2002
DIVISION:	Court of Appeal
PROCEEDING:	Application for Stay of Execution
ORIGINATING COURT:	District Court at Southport
DELIVERED ON:	1 June 2007
DELIVERED AT:	Brisbane
HEARING DATE:	28 May 2007
JUDGE:	Jerrard JA
ORDER:	1. Grant the stay 2. Orders numbered 1(c) and (d) of the orders made by this Court on 23 March 2007 be stayed until the determination of the application to the High Court for special leave to appeal from that judgment 3. The stay be discharged if the application is dismissed 4. In the event that special leave is allowed, those orders are stayed until the outcome of the appeal to the High Court, such stay being conditioned upon the applicants for special leave and appellants if leave be granted prosecuting hereafter without any delay caused by them the application for special leave and appeal respectively
CATCHWORDS:	SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – STAYING PROCEEDINGS – where the Court of Appeal gave judgment in favour of the respondents – where the applicants seek special leave to the High Court of Australia – whether the balance of convenience favours granting a stay of execution
COUNSEL:	M J Thompson for the applicant J C Faulkner for the respondent
SOLICITORS:	Stacks Gray Lawyers for the applicant Ledger Commercial and Property Lawyers for the respondent

1. JERRARD JA: This matter was the hearing of an application by Rapid Roofing Pty Ltd and Allan and Mary-Alise Ernestine for a stay of orders made by this Court in an appeal in which judgment was delivered on 23 March 2007. The judgment of this Court overturned an earlier judgment in favour of the applicants for a stay, and ordered that Rapid Roofing repay Natalise Pty Ltd $151,295, and pay the St Ange’s interest on that amount from 31 October 2001, at the rate of seven per cent pursuant to s 47 of the Supreme Court Act 1995 (Qld). Other orders as to costs were made, and Natalise Pty Ltd and the St Anges were ordered to release to Rapid Roofing Pty Ltd and the Ernestines all machinery and property noted in certain bills.

1. The applicants for the stay have filed an application for special leave in the High Court of Australia which might, but probably will not, come on for hearing in June 2007.  The applicants for a stay reveal in the affidavit material filed on their behalf that they claim a net excess of assets over liabilities of $1.1 million, but they have not made any payments in satisfaction of the judgment ordered against them.  The respondents to the stay, who were successful before the Court of Appeal, oppose the application, complaining they have succeeded on their counter-claim in the litigation and that the applicants are simply attempting to avoid the enforcement of a security held by the respondents over a residential property owned by the Ernestines, and without paying any money into this Court.

1. That is all accurate, and it is only by realisation of the security that the present respondents will satisfy the judgment ordered in their favour.  On the other hand, they do have that security, and I consider I am obliged to assume that the applicants have at least an arguable case to advance for special leave.  They primarily contend that the decision of this Court proceeded on a point not reflected in the pleading.  That may be arguable, and it is not appropriate to express any opinion, other than the applicants may have difficulty in establishing that their complaint makes a ground on which to grant special leave.

1. The critical issue is the balance of convenience.  The current respondents have the benefit of a security, although they are having to wait for their money, and had to borrow money themselves to finance the litigation, and are very anxious to recover the awarded sum.  The respondents also complain that the applicants have caused delay during the proceedings, including the application for special leave. 

1. I consider the balance of convenience marginally favours the granting of a stay, but on conditions.  I order that orders numbered 1(c) and (d) of the orders made by this Court on 23 March 2007 be stayed until the determination of the application to the High Court for special leave to appeal from that judgment, and the stay discharged if the application is dismissed; and in the event that special leave is allowed, those orders are stayed until the outcome of the appeal to the High Court, such stay being conditioned upon the applicants for special leave and appellants if leave be granted prosecuting hereafter without any delay caused by them the application for special leave and appeal respectively.  I grant liberty to apply.