Righi v Kissane Family Pty Limited as trustee for Kissane Family Trust

[2015] NSWCA 145

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Righi v Kissane Family Pty Limited as trustee for Kissane Family Trust [2015] NSWCA 145
Hearing dates:	18 May 2015
Decision date:	18 May 2015
Before:	Basten JA
Decision:	(1)Set down the appeal from the judgment of Lindsay J delivered on 16 April 2015 for hearing before this court on 1 July 2015; (2)direct the parties to liaise as to a timetable for the preparation of appeal books and provide a copy of an agreed timetable to the registrar; (3)otherwise dismiss the notice of motion; (4)order that the costs of the motion be the respondent’s costs in the appeal.
Catchwords:	APPEAL – application for expedition and stay – expedition granted – stay sought based on fears of adverse consequences for appellants if debt sought to be enforced – two appellants resident overseas – right to pursue appeal not in issue – undertaking proffered without security and no indication as to asset backing
Category:	Procedural and other rulings
Parties:	Sam Righi (First Appellant) Alan Norman Fleming (Second Appellant) Rodney Stewart (Third Appellant) Kissane Family Pty Limited as Trustee for the Kissane Family Trust (Respondent)
Representation:	Counsel: G Lucarelli (Appellants) V Bedrossian (Respondent) Solicitors: Mitry Lawyers (Appellants) Etheringtons Solicitors (Respondent)
File Number(s):	2015/128698
Decision under appeal	Court or tribunal: Supreme Court New South Wales Jurisdiction: Equity Division Citation: [2015] NSWSC 423 Date of Decision: 16 April 2015 Before: Lindsay J File Number(s): 2012/23898

Judgment

1. BASTEN JA: The matter before the Court involves two motions, one an application for a stay, the other an application for expedition. The application for expedition should be granted.

2. The Court offered as a hearing date 1 July 2015, which is convenient to both parties. The matter should be listed for hearing on that date. I note that there has been an estimate of a half day, on the assumption that written submissions are filed in due course. The point of law which is sought to be raised, being a matter of contractual interpretation, should be capable of resolution in a morning.

3. The parties have also indicated that they are in a position to formulate a timetable, which they are invited to do, and submit that to the registrar in due course.

4. It might be thought that in those circumstances it would not be necessary, given the month and a half before a hearing, to deal with the question of a stay. However, both parties have sought to agitate that matter and, accordingly, it is necessary to consider it.

5. The question arises with respect to the guarantee of an amount payable, according to the respondent, to a family trust which financed a promotion which turned out not to be entirely successful. The judgment given by Lindsay J in the Equity Division on 16 April 2015 has resulted in a debt in favour of the respondent in an amount of approximately $4.7 million. The present appellants were the fifth, sixth and seventh defendants in that proceeding.

6. The proposal for a stay is accompanied by an offer from the appellants by way of an undertaking not to dispose of assets, being an undertaking in the usual form. That has not been acceptable to the respondent which seeks to resist the stay. The debt is a not inconsiderable amount but there is no evidence that the respondent is unable to meet it in due course. The complaint is that the appellants could suffer adverse consequences if there is no stay pending the hearing of the appeal.

7. Of the appellants, Mr Stewart is resident overseas. He, it is said, fears possible adverse consequences if enforcement action is taken against him, being action by the financial services regulator in the UK in relation to the outstanding debt. Mr Fleming is also resident overseas. The only thing known with respect to him of present relevance is that he sold a property in Australia during the course of the Equity Division proceedings, although not, I accept, without knowledge of the respondent. Mr Righi, the third appellant, is resident in Australia. The court was taken to an affidavit from Mr Righi filed in the course of the proceedings below which suggests that he has not insignificant financial resources, the respondent’s complaint ultimately being that he has not been prepared to disclose them.

8. The respondent’s case in resistance to a stay is three-fold. First, there being a judgment in the respondent’s favour, the appellants are seeking an indulgence. Secondly, two of three appellants are resident overseas. Thirdly, the undertaking proffered in support of the stay is proffered without any disclosure of the assets which may support the value of the undertaking. Defensively, the respondent notes that if there were a concern about its lack of assets so as to cast doubt on its ability to repay the money, if in fact the money were paid, then that could be met by an agreement to pay the money into court pending determination of the appeal.

9. Ultimately this matter turns on a question of the balance of convenience. The only hardship to the appellants is that which flows from adverse consequences including possible enforcement action which might take place pending the determination of the appeal. Those consequences will be a result of their refusal to pay a debt due under a judgment. The affidavit in support of the stay indicates that they are not in a position to obtain security; a matter which in itself is no doubt of some concern to the respondent.

10. Although the appellants said that no substantial amount is available by way of security, counsel for the respondent noted that no indication had been given as to what lesser amount may be available. Certainly nothing is offered and there is no proposal to pay any amount into court. The undertaking offered may be of some value to the respondent, but it is not accepted as such. Details of assets which might support the undertaking were requested on 22 April 2015 but there has been no reply to that request.

11. Given the short period during which the matter will be on foot pending at least a hearing in this Court, it might be thought that a stay was appropriate for that reason. On the other hand, the offers made by the appellants do not engender great confidence in their circumstances, and the failure to offer anything more than a formal undertaking does not provide great support for the stay which they seek from being required to make payments. It is unlikely that much will happen by way of enforcement action in the next six weeks. If there are steps taken which give rise to real issues, then no doubt the matter can be brought back before the court. It is not a case in which a stay is necessary to preserve the appellants’ effective right of appeal. In the present circumstances I am not minded to order a stay.

12. There is an issue as to the appropriate order for costs of this motion. Although the appellants were partly successful in obtaining an expedited hearing, they did not obtain a stay of the judgment below. The respondent seeks its costs in any event, relying on a letter of 29 April 2015 seeking information as to the assets and liabilities of the appellants so that it could consider whether or not to consent to a stay. That submission assumed that the failure of the appellants to provide details of their assets in support of their proffered undertaking was a critical issue in refusing the stay. It was certainly a significant issue but I am not persuaded that it should result in an order for costs in the circumstances of this case. What I will do is to order that the costs of the motion be the respondent’s costs in the appeal.

13. Accordingly, I make the following orders:

(1)   set down the appeal from the judgment of Lindsay J delivered on 16 April 2015 for hearing before this court on 1 July 2015;

(2)   direct the parties to liaise as to a timetable for the preparation of appeal books and provide a copy of an agreed timetable to the registrar;

(3)   otherwise dismiss the notice of motion;

(4)   order that the costs of the motion be the respondent’s costs in the appeal.

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Decision last updated: 27 May 2015