Re: Caf Citrus Bulimba

In the case concerning the partnership known as Café Citrus Bulimba, the applicant, represented by S J Lee, sought a stay of the orders made by the Court on 11 March 1999. The respondent, represented by A S Colavitti, had not filed affidavit material in reply when the originating summons was first heard on 10 March 1999, 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, and the practice direction was complied with, although inadequately in the case of the applicant. Despite this, the Court was satisfied that it had jurisdiction to appoint an interim receiver, particularly in view of the many disputes between the parties.

The legal issues the Court was required to decide were whether special circumstances justified granting a stay pending appeal and whether the stay should be granted for reasons relevant to the enforcement of the orders and not for reasons which go to their validity or correctness. The Court had to consider the likelihood of success on the appeal and whether the successful applicant would be deprived of the fruits of his appeal if a stay of execution was not granted.

The Court granted the stay pending appeal on the undertaking offered to the Court to keep proper books of account and records pending the trial of this proceeding. The special circumstance which justified the grant of a stay in this case was that the successful applicant would be deprived of the fruits of his appeal if a stay of execution was 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. The stay was granted for reasons relevant to the enforcement of the orders and not for reasons which go to their validity or correctness. However, it could not be said in this case that there is no prospect of success on the appeal.

The final orders were that the stay was granted for reasons relevant to the enforcement of the orders and not for reasons which go to their validity or correctness. The stay was granted pending the appeal on the undertaking offered to the Court to keep proper books of account and records pending the trial of this proceeding.