Roberts v Roberts - [2021] SASCA 81

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
ROBERTS & ANOR v ROBERTS
[2021] SASCA 81
Judgment of the Court of Appeal (ex tempore)
(The Honourable Justice Doyle, the Honourable Justice Livesey and the Honourable Justice Bleby)
18 August 2021
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS
Application for leave to appeal.
The applicants are the parents of the respondent. Following a long trial, the respondent succeeded with his case in proprietary estoppel, and was held entitled to purchase the applicants’ large farming property.
The trial Judge delivered his reasons on 17 June 2021. Final orders were made on 24 June 2021, which provided for the transfer of the property on a date nominated by the respondent. The respondent nominated 13 August 2021 for settlement of the transfer.
On 14 July 2021, the applicants filed their notice of appeal. On 6 August 2021, they filed an application for a stay of the operation of the orders made in favour of the respondent.
The stay application was heard on 12 August 2021. The real contest on the application concerned the balance of convenience and, in particular, the conflicting claims of prejudice by the parties. The primary Judge refused to order a stay, on the basis that she was not in a position to make precise findings concerning these conflicting claims, and therefore favoured protecting the interests of the successful party at first instance.
The applicants seek leave to appeal the Judge’s decision.
Held (per the Court), refusing the application for leave to appeal:
1. In circumstances where it was not possible to resolve the contest over competing claims of prejudice, and given the appellants’ delay in bringing the application, the primary Judge was entitled to give weight to the claims of the successful party at first instance.
2. No error has been shown in the exercise of discretion by the primary Judge.
Playford Vineyard Pty Ltd v Wishford Nominees Pty Ltd (No 2) [2018] SASC 152; Food and Beverage Australia Ltd v PJ Nash Pty Ltd (No 2) [2020] SASC 82; Brackenridge v Bendigo and Adelaide Bank Ltd [2020] SASC 235; Cayne v Global Natural Resource plc [1984] 1 All ER 225, considered.

ROBERTS & ANOR v ROBERTS
[2021] SASCA 81
Court of Appeal – Civil: Doyle, Livesey & Bleby JJA

THE COURT (ex tempore): The appellants seek leave to appeal the decision of a Judge of this Court refusing a stay of the operation of orders made in favour of the respondent following a long trial.
The appellants are the parents of the respondent. The respondent succeeded with his case in proprietary estoppel, and was held entitled to purchase the appellants’ large farming property based in New South Wales for a price of $3.8 million.
Reasons were delivered by the trial Judge on 17 June, and final orders were made on 24 June 2021. Those orders provided for a transfer of the property on a date prior to 30 September 2021, as nominated by the respondent (with seven days notice). The respondent ultimately nominated a date of 13 August 2021 for settlement of the transfer.
On 14 July 2021 the appellants filed their notice of appeal.[1]
[1] Subsequently revised on 12 August 2021.
The appellants’ stay application was not filed until 6 August 2021, and was only (informally) served on 9 August 2021. The matter first came before a Judge of this Court on the following day, 10 August 2021. The stay application was then set for hearing on 12 August 2021, before the primary Judge. Her Honour heard and refused the stay that day.[2]
[2] Reasons were provided on 16 August 2021: Roberts v Roberts [2021] SASC 29 (Hughes J).
An interim stay granted by the primary Judge, intended to enable this application for leave to appeal to be heard on an urgent basis, expires this afternoon.
Following a short hearing before another member of this Court on 16 August 2021, further affidavit evidence and submissions were filed.
The general principles governing an application for a stay pending appeal are not in any doubt.[3] The parties do not suggest that the primary Judge applied the wrong legal principles, subject perhaps to some nuances in relation to the balancing of prejudice, to which we will come.
[3] Playford Vineyard Pty Ltd v Wishford Nominees Pty Ltd (No 2) [2018] SASC 152, [21]-[25] (Stanley J); Food and Beverage Australia Ltd v PJ Nash Pty Ltd (No 2) [2020] SASC 82, [14]-[15] (Doyle J); Brackenridge v Bendigo and Adelaide Bank Ltd [2020] SASC 235, [14]-[15] (Livesey J).
In her reasons for refusing the stay, the primary Judge reviewed the appellants’ revised notice of appeal. It contains numerous grounds, most of which are articulated in quite some detail, and many of which involve challenges to findings of fact made by the trial Judge. The primary Judge held that she was not in a position to meaningfully evaluate the strength of the various grounds and contentions which they raised. She was prepared to find, however, that at least some of the appeal grounds that were advanced were both bona fide and arguable. We agree with this conclusion and it was not contested before this Court.
The appellants complain of procedural unfairness in the manner in which the primary Judge dealt with their stay application. However, in view of the urgency in which the matter came on, which in our view was at least in part a product of the appellants’ own delay (in filing and then serving their application for a stay), we do not think there is any merit in these complaints.
While the appellants contend that they did not anticipate (and, by inference, could not reasonably have anticipated) that the respondent might be in a position to borrow more than $3.8 million, and hence be exposed to the prejudice upon which he relies (see below), we do not accept this submission. What the respondent now proposes to do is, at least in broad terms, something that could reasonably have been anticipated.
The real contest on the stay application concerned the balance of convenience, and the conflicting claims of prejudice. It is unnecessary to go into detail. The affidavits are lengthy. The respondent contends that if a stay is granted he will be thwarted in exploiting the favourable financial terms which presently enable him to both purchase the subject property and pay out existing debt. He says that if a stay is granted he will lose the benefit of the valuable opportunity that the judgment affords him, and faces bankruptcy. The appellants, on the other hand, are concerned that if no stay is granted, and the property is transferred, the respondent will not succeed with the property, with the result that he will not meet his large financial obligations. They say there is a real risk that the respondent's financier will call up its security, take possession and sell the property to a third party. In that event, the appellants’ appeal will be rendered nugatory.
The primary Judge recognised that she was not in a position to make precise findings concerning these conflicting claims of prejudice. She accepted that there was prejudice on each side. Ultimately, she found in favour of “protecting the interests of the successful party at first instance” and refused the stay.
It has been recognised that, whilst the phrase “balance of convenience” is a “useful shorthand”, the evaluation concerns something “more fundamental, more weighty than mere convenience”. The evaluation required of the Court has been described as balancing “the risk of doing an injustice”.[4] Put another way, assuming the existence of a bona fide or arguable appeal, and a real risk of prejudice to the appellant in the event a stay is not granted, the determination of a stay application involves balancing the risk of inconvenience or prejudice to each of the parties.
[4] Cayne v Global Natural Resource plc [1984] 1 All ER 225, 237, citing NWL Ltd v Woods [1979] 1 WLR 1294, 1306 (Lord Diplock), concerning the approach taken to the balance of convenience in interlocutory injunction cases.
We accept that when carrying out this balancing exercise it will often be necessary to have regard to any undertakings that the parties might proffer so as to assuage the prejudice asserted by the other party. While the appellants contend that the primary Judge denied them an opportunity to formulate, or get instructions on, the undertakings they might have been able to give to address the respondent's prejudice, we emphasise that it is ordinarily a matter for the party seeking a stay to come armed with relevant instructions. To the extent that the urgent timing of the application in this case impeded the appellants doing so, as we have said earlier, we consider that this was at least in part a product of their own delay. In any event, the appellants have still not formulated undertakings with the appropriate precision and clarity that, in our view, would be necessary to address the prejudice that is relied upon by the respondent and was found to exist by the primary Judge.
In our opinion, the primary Judge was correct to find that it was not possible to resolve the contest over the competing claims of prejudice. Certainly we are not persuaded that it can be said that the risk of prejudice to the appellants outweighs the risk of prejudice to the respondent. In those circumstances, her Honour was entitled to give weight to the claims of the successful party who was holding the benefit of a judgment of this Court. In addition, although not mentioned by her Honour, this is a case where, in our view, the appellants' delay in bringing on their application is a relevant consideration.
In the result, the appellants failed to discharge the onus on them to establish that a stay should be granted in the interests of justice. In the circumstances, we are of the opinion that no error has been shown in the exercise of discretion by the primary Judge.
In reaching this view, we have not overlooked the capacity of this Court to accommodate a relatively expedited hearing of this appeal. Indeed, we have listed the appeal for hearing in early November, this being the earliest the parties say they can be ready for the appeal.
Leave to appeal is refused.