Re: Caf Citrus Bulimba
[1999] QSC 55
•19 March 1999
IN THE SUPREME COURT
OF QUEENSLAND
O.S. No. 1930 of 1999
Brisbane
Before the Hon. Justice Atkinson
[Re: Café Citrus Bulimba]
IN THE MATTER of the Partnership Act
- and -
IN THE MATTER of Café Citrus Bulimba (a firm)
REASONS FOR JUDGMENT - ATKINSON J
Judgment delivered on 19 March 1999
CATCHWORDS: CIVIL PROCEDURE - application for stay pending appeal - whether special circumstances justify granting of stay - stay granted
Counsel: S J Lee for the applicant
A S Colavitti for the respondent
Solicitors: John Monteath & Associates Solicitors for the applicant
Gregg Lawyers for the respondent
Hearing dates: 10, 11 and 12 March 1999
IN THE SUPREME COURT
OF QUEENSLAND
O.S. No. 1930 of 1999
Brisbane
Before the Hon. Justice Atkinson
[Re: Café Citrus Bulimba]
IN THE MATTER of the Partnership Act
- and -
IN THE MATTER of Café Citrus Bulimba (a firm)
REASONS FOR JUDGMENT - ATKINSON J
Judgment delivered on 19 March 1999
This is an application of a stay of orders made by the Court on 11 March 1999 after the hearing of this matter on 10 March and 11 March 1999 in chambers. The application for a stay was made on 12 March 1999. The application for a stay was made pursuant to O.47 r.18 or alternatively O.60 r.1 of the Rules of the Supreme Court.[1]
[1]J C Scott Constructions v Mermaid Waters Tavern Pty Ltd (No.1) [1983] 2 QdR 243, affirmed by the Full Court at p.255; Martinez v Roland [1983] 1 QdR 496, 505.
When the originating summons was first heard on 10 March 1999, a number of affidavits were read by the applicant. The respondent had not yet filed affidavit material in reply and the applicant had failed to comply with the practice direction requiring an outline of submissions. The matter was adjourned to the following day where full argument took place, although that argument was necessarily limited by the time available in chambers on that day. The respondent read five affidavits and the applicant read a further three affidavits. At this time the practice direction requiring outlines of argument was complied with, although inadequately in the case of the applicant. Nevertheless, after hearing oral argument, I was satisfied that I had jurisdiction to and should in the circumstances appoint an interim receiver[2], particularly in view of the many disputes between the parties. I gave short ex tempore reasons for my decision.
[2]See Lamerand v Lamerand (No.1) (1960) 80 WN(NSW) 198; Tate v Barry (1928) SR(NSW) 380 at 383.
On 12 March 1999, on the application for the respondent, I made orders granting an interim stay until I gave a decision on whether a stay ought to be granted pending appeal. I believe it is appropriate that I make the order granting a stay pending appeal. This is in spite of my view that an interim receiver ought to be appointed and directions given for the orderly conduct of the resolution of the factual disputes between the parties. I am prepared to grant the stay on the undertaking offered to the Court on 12 March 1999 to keep proper books of account and records pending the trial of this proceeding.
The special circumstance which justifies the grant of a stay in this case[3] is that the successful applicant will be deprived of the fruits of his appeal if a stay of execution is not granted, as it is likely that the sale of the business, alleged to be the property of the partnership, would be sold by the receiver.
[3]J C Scott Constructions v Mermaid Waters Tavern Pty Ltd (No.1) (supra) at 246.
The stay is granted for reasons relevant to the enforcement of the orders and not for reasons which go to their validity or correctness.[4] However it could not be said in this case that there is no prospect of success on the appeal.
[4]J C Scott Constructions v Mermaid Waters Tavern Pty Ltd (No.1) (supra) at 248.
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