Roberts v Roberts

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
ROBERTS & ANOR v ROBERTS
[2021] SASC 99
Reasons for Decision of the Honourable Justice Hughes

PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - INHERENT AND GENERAL STATUTORY POWERS - TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS - OTHER MATTERS
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS
The appellants had filed a notice of appeal with respect to the orders of Blue J made on 24 June 2021 in proceedings SCCIV-18-996 and SCCIV-20-87 and they sought a stay of the orders of Blue J pending the outcome of their appeal. The effect of the orders of Blue J was that the appellant had to transfer a piece of land to the respondent by a date nominated by the respondent and the respondent had to provide the first appellant with a sum of $3,808,305 as part of the settlement. The respondent had nominated 13 August 2021 as the date on which settlement was to take place.
Three other preliminary applications arose for determination during the hearing of the interlocutory application: an application for Mr Mark Roberts to participate in the application for a stay, an application for an adjournment of the hearing, and an application that the respondent be made available for cross-examination on the application for a stay.
Held, per Hughes J:
1. The Court declines to let Mr Mark Roberts participate in the hearing for the application for a stay;
2. The Court refuses to adjourn the hearing for the application for a stay;
3. The Court refuses the application that the respondent be made available for cross-examination on the application for a stay; and
4. The Court refuses the application for a stay of the orders of Blue J pending the outcome of the appeal; and
5. The Court grants a stay of the orders of Blue J until 18 August 2021 to allow the appellants to pursue an appeal of the decision to refuse a stay of the orders pending the outcome of the appeal, on the condition of an undertaking as to damages by the appellants.
Uniform Civil Rules 2020 (SA) r 215.4; Supreme Court Civil Rules 2006 (SA) r 300, referred to.
Brackenridge v Bendigo and Adelaide Bank Limited [2020] SASC 235; 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, applied.
Roberts v Roberts [2021] SASC 72, discussed.
Giumelliv Giumelli [1999] HCA 10; Rodda & Anor v Ian Rodda Pty Ltd [2015] SASC 95; DHJPM Pty Ltd v Blackthorn Resources Ltd [2011] NSWCA 348; Ashton v Pratt [2015] NSWCA 12; Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577; Zanker v Kupsch [2014] SASCFC 13; R v T, WA [2014] SASCFC 3, considered.

ROBERTS & ANOR v ROBERTS
[2021] SASC 99
Civil
HUGHES J
Introduction

The appellants, Mr Jack Roberts and Mrs Nola Roberts, filed an appeal with respect to the judgment of Blue J in proceedings SCCIV-18-996 and SCCIV-20-87. The orders required Mr Jack Roberts to execute, and cause to be registered, the transfer of all of his estate and interest both at law and in equity in some land (“the Pulgamurtie Land”) to the respondent on a date nominated by the respondent that was to be on or before 30 September 2021. The respondent, Mr Grant Roberts, nominated 13 August 2021 as the date for settlement of the transfer of the Pulgamurtie Land.
By urgent interlocutory application filed on 6 August 2021, the appellants sought a stay of Blue J’s orders pending the outcome of the appeal. The application was listed on 10 August 2021 and the respondent was granted permission by Bleby JA on that occasion to file an affidavit in response by 5 pm on 11 August 2021 and the application was adjourned for that purpose. I conducted a hearing on 12 August 2021 to hear the parties on the application for a stay. I refused the application for a stay of the orders pending the outcome of the appeal and indicated that I would provide reasons on Monday 16 August 2021. Upon Senior Counsel foreshadowing an appeal of my decision to be filed by close of business 12 August 2021, I granted a stay of Blue J’s orders until close of business on Wednesday 18 August 2021 on condition of an undertaking as to damages by the appellants. I now provide my reasons for my decision.
In short, I find that the appellants have described an arguable case on appeal, and a risk of prejudice if the stay is not granted, but the balance of convenience favours the refusal of the stay. More detailed reasons follow.
Preliminary issues raised during the application hearing – Request by Mr Mark Roberts to participate in the interlocutory application as an interested party, application for adjournment, and request to cross-examine the respondent
In addition to the appearance of Mr Ower QC for the appellants, and Mr Cox QC for the respondent, Mr W Mellor appeared and made an oral application to make submissions on the application on behalf of Mr Mark Roberts, a family member who gave evidence in the proceedings before Blue J.
Mr Mellor indicated that he was only recently instructed to act for Mr Mark Roberts, and sought an adjournment of the interlocutory application to more comprehensively consider the materials that had been filed for the application. He indicated that Mr Mark Roberts would seek to support the position of the appellants that a stay should be granted.
The respondent opposed the application from Mr Mark Roberts. Senior Counsel for the respondent submitted that there had been no formal application from Mr Mark Roberts to be joined as an interested party and the respondent has received no notice prior to the hearing that he intended to be joined to the proceedings. Senior Counsel for the appellants indicated that the appellants were unopposed to the joinder of Mr Mark Roberts to the interlocutory application.
I indicated to the parties that I would consider the application for a joinder of Mr Mark Roberts if I was satisfied that the hearing should be adjourned on Mr Ower QC’s foreshadowed application for an adjournment for separate reasons. However, if I was not satisfied that an adjournment should be granted, I would refuse to let Mr Mark Roberts participate in the hearing for the interlocutory application where he was yet to make a formal application to be joined to the proceedings as an interested party and in light of the prejudice to the respondent that would attach to permission being granted for Mr Mark Roberts to make submissions through counsel, which would undoubtedly entail some degree of evidence from the bar table, as to the indirect effect of the stay upon Mr Mark Roberts. Subsequently, when I refused the appellants’ application for an adjournment, Mr Mellor withdrew from the bar table.
The appellants applied for an adjournment to be able to consider and file answering affidavit material if instructed, in response to the respondent’s late-filed affidavit which had arrived at the court and with the appellants at approximately 9.30 pm the previous evening, 11 August 2021.
The primary objection to the late-filed affidavit was that it contained material concerning the respondent’s financial position in relation to which the appellants were not apprised prior to the receipt of the affidavit. The key information in this regard is the respondent’s evidence that he proposes to execute documents with Westpac Bank to borrow the sum of $6,950,000. With that sum, he proposes to pay the purchase price of $3,808,305 for the Pulgamurtie Land to the first appellant, repay a loan of $1.2 million to Rural Bank which he asserts is overdue, purchase stock for $1.5 million and maintain an amount of $450,000 to operate the farm.
Senior Counsel for the appellants submitted that an adjournment would allow, if necessary, the filing of responding material to be provided to address the assertions in the affidavit and allow subpoenas to be issued to officers of Rural Bank and the Westpac Bank so that evidence may be elicited that might undermine the assumptions in the respondent’s affidavit as to those institutions’ likely actions. The Objections to Evidence filed by the appellants on 12 August 2021 contains a description of various challenges the appellants make to the respondent’s affidavit.
Perhaps unsurprisingly, given that the transfer was scheduled for the following day, the respondent opposed the adjournment. Senior Counsel for the respondent submitted that the appellants were apprised of the information in the affidavit concerning the respondent’s financial position to a significant extent because evidence of the respondent’s financial position and his plans, albeit at an earlier date, which are not inconsistent with the steps foreshadowed in the affidavit, was adduced during the course of the trial.
The appellants in fact predicted in their application for a stay the very steps that the respondent has taken in the affidavit of their solicitor, Georgia Contala, sworn on 6 August 2021 at paragraph [10] et seq. I do not accept, therefore, that the appellants have been taken by surprise. The respondent’s affidavit was filed out of hours and beyond the time granted by Bleby JA. However, I do not consider that the prejudice occasioned by that alone warranted an adjournment when the significance of the schedule to which the parties are operating to comply with Blue J’s order is taken into account.
Balancing the desirability of determining the stay application prior to the settlement date and the prejudice to the appellants in not having received the affidavit by close of business when it was directed to be filed, I refused the appellants’ application for an adjournment. In my view, the content of the affidavit was not such as to raise unexpected material or substantially disadvantage the appellants in the making of what is always, because of the urgency, arguments under conditions that do not allow for the preparation appropriate for non-urgent applications.
Senior Counsel for the appellants then applied to have Mr Grant Roberts made available for cross-examination, which was opposed on the basis that it had not been adequately identified why it was necessary for the disposition of the stay. I refused the application for Mr Grant Roberts to be made available for cross-examination.
The nature of a stay application is such that evidence is often not able to be tested to the degree that it would be in substantive proceedings. Permission to test the evidence can achieve the effect sought by the party seeking to effect the stay and, whereas here the subject of the evidence has a close relationship to the evidence given at trial, undermine the evidence and create a protracted delay. It is preferably avoided unless the proper disposition of the application requires it. I am not satisfied that it was required. Senior Counsel was provided with an opportunity to make it clear how the evidence should be treated and the doubts that might be entertained about it.
The hearing of the application thereafter proceeded on the basis of submissions and the following documents:
·Notice of Appeal filed on 14 July 2021;
·Notice of Cross Appeal filed on 27 July 2021;
·Interlocutory Application filed on 10 August 2021;
·Affidavit of Georgia Contala filed on 10 August 2021;
·Affidavit of Grant Roberts filed on 12 August 2021;
·Affidavit of Sebastian Hill filed on 12 August 2021;
·Outline of Argument of the Appellants filed on 12 August 2021;
·Objections to Evidence filed by the appellants on 12 August 2021;
·Amended Grounds of Appeal – Revision 1 filed on 12 August 2021; and
·Outline of Argument of the Respondent dated 12 August 2021.
The application hearing – legal principles
The relevant legal principles are uncontroversial. The Court’s power to grant a stay of a decision pending the outcome of an appeal is codified under rule 215.4 of the Uniform Civil Rules 2020 (SA) which states:
215.4—Stay of execution
(1) The Court may, if there is proper reason to do so, stay execution of a judgment or proceeding pending the hearing and determination of an appellate proceeding or application for leave to appeal on such terms as it thinks fit.
(2) An application for a stay must be made by filing an interlocutory application and supporting affidavit in accordance with rule 102.1 deposing to the grounds on which the stay is sought.
(3) An application for a stay must be served on each other party to the appellate proceeding as soon as practicable.
Note—
An application for a stay does not itself operate to stay the judgment or proceeding. Only an order of the Court can stay a judgment or proceeding.
In Brackenridge v Bendigo and Adelaide Bank Limited,[1] Livesey J (as his Honour then was) made the following observations about the court’s power to order a stay pending the outcome of an appeal:[2]
Regardless whether an application is made pursuant to r 215.4 of the Uniform Civil Rules 2020 (SA), s 17 of the Enforcement of Judgments Act 1991 (SA), or the inherent jurisdiction of this Court, there is a long line of authority demonstrating that a successful litigant is ordinarily entitled to the benefit of a judgment unless and until that judgment is set aside or varied on appeal. The “norm is no stay”, such that if “there is to be a stay, cause must be shown”.
As may be expected, the onus is on the party seeking the stay to justify the favourable exercise of discretion. That discretion is not to be fettered by the use of adjectives such as “special” or “exceptional”. Ordinarily, the Court will act in the interests of justice, endeavouring to balance the interests of the parties, and ultimately considering the balance of convenience. In many cases, the appellant seeking a stay must demonstrate serious issues for determination, together with the real risk of irreparable prejudice or damage in the event of a successful appeal.
(footnotes omitted)
[1] [2020] SASC 235.
[2] Ibid at [14] – [15].
In Playford Vineyard Pty Ltd v Wishford Nominees Pty Ltd (No 2),[3] Stanley J similarly considered an application for a stay of an order under s 17 of the Enforcement of Judgments Act 1991 (SA) to stay the execution of a judgment concerning a vineyard. His Honour described the relevant principles to the granting of a stay:[4]
Ordinarily, a judgment creditor is entitled to enforce their judgment when there is an appeal pending. The applicant for a stay bears the onus of satisfying the Court that the discretionary power should be exercised in its favour.
An applicant for a stay of execution pending the hearing and determination of an appeal must demonstrate a proper reason, or appropriate case, to warrant the exercise of the discretion. The mere filing of an appeal will not suffice. The Court generally proceeds from a starting point that the decision below was correct and that the party who has been successful at trial is entitled to the benefit of their judgment. However, in considering the balance of convenience, an important consideration is that a successful appellant should not be deprived of the fruits of a successful appeal.
An applicant must establish that the appeal raises a serious issue, that there is a real risk the appellant will suffer some significant prejudice or damage if the stay is not granted and the balance of convenience favours a stay. A stay should only be granted where the justice of the case requires it. It is necessary to show that the appeal mechanism is not being used as an instrument of oppression or merely as a delaying tactic. In exercising the discretion the Court will balance the interests of the parties and ultimately have regards to the balance of convenience.
In Commissioner of Taxation v Myer Emporium Ltd (No 1) Dawson J held that the grant of a stay would be warranted if there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed. In Kalifair Pty Ltd v DigiTech (Aust) Ltd, it was held that balance of convenience favours the grant of a stay where an appeal would be rendered nugatory or abortive if the stay was not granted.
Not only does the Court have a discretion whether or not to grant a stay, it also has a discretion, where it decides to grant a stay, as to the terms upon which that would be fair.
(footnotes omitted)
[3] [2018] SASC 152.
[4] Ibid at [21] – [25].
In Food and Beverage Australia Ltd v PJ Nash Pty Ltd (No 2),[5] an appeal was pursued in respect of a judgment that required payment of a judgment sum by the defendant to the plaintiff. In summarising the relevant principles regarding an application for a stay under the former rule 300 of the Supreme Court Civil Rules 2006 (SA), Doyle J stated:[6]
The principles governing an application for a stay of execution pending appeal are well known, and are not in dispute. In Lesses v Maras (No 2), I summarised them in the following terms:
In short, the Court has a discretion to grant a stay, and if so, as to the terms of that stay. While it is not necessary to establish special or exceptional circumstances, the party seeking a stay must demonstrate a proper reason, or appropriate case, to warrant the exercise of the discretion to grant a stay in his or her favour. The mere filing of an appeal will not suffice. Rather, the Court generally proceeds from the starting point that the decision below was correct, and hence that the party who has been successful at trial is entitled to the benefit of their judgment. However, from this starting point, the Court exercises a broad discretion which entails consideration of the competing rights of the parties, any prejudice likely to be suffered by either party in the event that a stay is or is not granted, and the overall balance of convenience.
In Ryan v Urban Construct (SA) Pty Ltd (No 2), Nicholson J said that the task of the Court is to do what is just in the circumstances of the case; that a stay will be warranted where the justice of the case so requires. His Honour explained that the Court must balance the interests of the parties, and have ultimate regard to the balance of convenience. His Honour added that typically an applicant for a stay will need to show that the appeal raises serious issues for determination, and that there is a real risk that the applicant will suffer prejudice of some significance if a stay were not to be granted, which prejudice could not be redressed by a successful appeal.
(footnotes omitted)
[5] [2020] SASC 82.
[6] Ibid at [14] – [15].
A number of principles are evident from these case authorities on an application for a stay. The power to grant a stay is a broad discretionary power that ultimately turns upon the facts of each individual case and what would be in the interests of justice in the particular circumstances. The starting point is that the successful party following a trial is entitled to the benefit of the judgment and the party seeking a stay of the execution of the judgment has the onus of establishing that the particular circumstances warrant the granting of a stay in their favour. The court is required to find that the appeal is arguable, and that there is a real risk to the applicant that a prejudice or damage would be suffered if the stay were not granted, that would not be redressed on a successful appeal. If those matters are established, the Court must assess whether the balance of convenience favours the granting of a stay. That balancing exercise must be performed with reference to the interests of the parties whilst bearing in mind the onus on the applicant for a stay to demonstrate that the discretion should be exercised in their favour and a consideration of what would be just in the circumstances of the case.
The merits of the appeal

The appellants filed a revised Grounds of Appeal on 12 August 2021.
Grounds 1-6 inclusive challenge the trial Judge’s application of the principles of proprietary estoppel. The trial Judge dealt with this aspect of the proceedings at paragraphs 569 to 616 inclusive.[7] Those challenges rely significantly upon impugning the underlying facts and to that extent the appellants will face the usual difficulties in persuading the Court of Appeal that it should disturb those findings. However, some of the grounds (described as the strongest grounds for the purpose of the application) further assert that the facts as found could not give rise to a proprietary estoppel and that the remedy was inapt. Ground 3 asserts that the value of the works undertaken by the respondent on the land, being some $508,831, was an amount in relation to which the respondent received a benefit and could recoup in any event through sale. In those circumstances, no proprietary estoppel arose. The trial Judge specifically addressed how the benefit of Mr Grant Roberts’ works and improvements flowed in the short term and the long term to each of the parties.[8] The appellants seek to argue that the trial Judge’s analysis has failed to incorporate or properly weigh those benefits in determining whether there was a net detriment to Mr Grant Roberts. Without making any assessment of the likelihood of success of the argument, I accept that it is arguable that the detriment component of the estoppel argument was wrongly concluded. I emphasise that the appellants’ argument is factually-based and faces the hurdles that have already been identified by the respondent in this regard.
[7] Roberts v Roberts [2021] SASC 72 at [569] – [616] (Blue J).
[8] Ibid at [603] – [616].
Ground 5 asserts that the remedy was inapt in circumstances in which the purchase price was $3,808,350 and the value of the conveyance was $10,453,000 as at August 2020. The trial Judge’s reasons at [618] to [640] inclusive set out the basis upon which the remedy was arrived at. Remedy upon a finding of estoppel requires consideration of proportionality[9] which is challenging in cases involving competing prejudices and interests. There will often be room for multiple approaches and not a single correct approach to the relief. To that extent, the appellants’ assertion on appeal is arguable.
[9] Giumelli v Giumelli [1999] HCA 10; Rodda & Anor v Ian Rodda Pty Ltd [2015] SASC 95 at [310] (Nicholson J).
In relation to ground 1, the appellants referred the Court to DHJPM Pty Ltd v Blackthorn Resources Ltd.[10] They contend that proprietary estoppel does not arise from mere negotiations between commercial parties with the expectation of a future contract. Of course, the circumstances of the parties’ positions in this case are quite different. This is an intra-familial arrangement with a will in the background and evidence that the first appellant wanted a family member to purchase the property to the exclusion of others. Again, the factual findings as to the circumstances in which the expectation arose will be key to the prospects of this ground of appeal’s success. This does not require a departure from the principle enunciated in Ashton v Pratt[11] that recourse is not to be had to an assumption that intra-familial arrangements are not intended to create legal relations.[12]
[10] [2011] NSWCA 348.
[11] [2015] NSWCA 12.
[12] Ibid at [73] (Bathurst CJ).
The appellants assert in ground 7, with appropriate deference but perhaps inappropriate priority, that the trial miscarried due to unfairness occasioned by the trial Judge’s active involvement in the evidence of some witnesses. If this ground is pursued it will be appropriate for it to be addressed first as it alleges that there has not been a fair trial. If this ground is made out, there will not have been a trial in accordance with law, and a retrial will be necessary. It follows that this ground should be addressed first: Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd.[13]
[13] (2006) 229 CLR 577.
The most common form of allegation in this regard is really an incident of the rule against bias and operates where the intervention discloses the reasonable possibility that the judicial officer has adopted the role of one of the parties, such as prosecutor: see, for example, Zanker v Kupsch.[14] Here, however, the allegation can be understood to be that one party’s case has been disrupted unduly by the judicial officer’s conduct and that the conduct has clouded the judge’s ability to evaluate the evidence: R v T,WA.[15]
[14] [2014] SASCFC 13.
[15] [2014] SASCFC 3.
In contrast where, as here, a witness is thought to present their evidence in a manner that seeks to protect himself from disclosure of some wrongdoing unrelated to the dispute (the making of child support payments), and such manner of presentation appears to impede the receipt of evidence relevant to the disposition of the dispute, the trial Judge may be found to have greater justification for ensuring that the relevant evidence is elicited so that the proceedings can be properly determined. The limits of appropriate intervention will depend on a number of factors that counsel did not suggest could be properly considered in this application.
The grounds of appeal as a whole fall in the territory between those which disclose an error that is glaringly apparent upon the face of the judgment as might describe an oversight in the application of a statutory test, and those which are unintelligible or misconceived and may be readily rejected. I hasten to add that these grounds do not appear close to these metes and bounds but fall within the territory. I consider that the grounds, or at least some of them, are arguable and that the low threshold that attaches to the first limb of the test for a stay is overcome.
The evidence and submissions as relevant to the issue of prejudice
The appellants’ reasons for seeking a stay of the orders are outlined in their outline of argument filed on 12 August 2021, the affidavit of solicitor Georgia Contala filed on 10 August 2021 and the oral submissions of their Senior Counsel at the hearing for the interlocutory application. The prejudice they identify is what they describe as the significant risk that the respondent could not restore ownership of the land to them if their appeal were to succeed. They say that this risk is disclosed by Mr Grant Roberts’ affidavit describing the manner in which he will finance the purchase of the Pulgamurtie Land. The appellants’ solicitor’s affidavit pre-dates Mr Grant Roberts’ affidavit setting out the exact manner in which the finance will be raised, but the appellants’ argument remains. The appellants contend that should the respondent be unable to meet the repayment obligations of this mortgage over the Pulgamurtie Land, the Land would be sold by mortgagee sale prior to the conclusion of proceedings. Further, if the appellants were successful on appeal, the respondent would be unable to repay the finance provided for the mortgage over the Land which would also compromise the reconveyance of the Land back to the appellants.
The respondent argued that the risk that he could not restore the land to the respondents is low based on the proposal he has for servicing the debt, the agreement of the lender to provide the finance, and the current conditions at the farm.
Consideration – has prejudice been established?
I accept that there is a risk that, if the appellants are successful on the disposition of the appeal, the respondent will be unable to restore the appellants to their ownership of the property. The extent of that risk is determined by a number of factors including the success or otherwise of Mr Grant Roberts in making a profit (which in turn is determined by stock prices and the weather and other external and uncontrollable factors) and meeting his repayments, how long it is before the appeal takes to be determined (which is subject to a number of factors some of which are in the parties’ control and some that are not), and other events and circumstances that might arise. I am not satisfied on the evidence that the appellants have shown that the risk is quantifiable. It is certainly not inevitable that Mr Grant Roberts could not restore them to ownership of the property at any time but particularly within the next 12 months. Prejudice is established but it is contingent and the risk of it arising is unquantifiable because of the nature of the variables. For the purpose of the test however, the appellants overcome this hurdle.
Evidence, submissions and consideration of the balance of convenience
The balance of convenience gives rise to strongly competing interests in this matter.
The prejudice to the appellants, quantifiable only by estimation and contingent on the length of time it takes for the appeal to be determined (which is partly in the control of the appellants who have only this week filed revised grounds of appeal one day before the appeal books were due to be filed), must be weighed against other factors in the assessment of the balance of convenience.
In particular, the balance of convenience requires consideration of the effect of the grant of the stay upon the respondent. The respondent submits that if he cannot take the benefit of the orders now, the risk that he will not be able to take that benefit in the future, or that the benefit will be significantly reduced, is significant.
The respondent relied primarily on his affidavit sworn on 11 August 2021 wherein he deposed to having signed loan and mortgage documents with Westpac on 11 August 2021 providing him with financing in the sum of $6,950,000.[16] Mr Grant Roberts proposes to pay the first appellant $3,808,305 to complete the purchase of the Pulgamurtie Land, settle his debt with Rural Bank in the sum of $1.2 million, acquire $1.5 million in stock to achieve cashflow to service the debt and generate an income, and retain $450,000 as working capital to run the property.[17]
[16] Affidavit of Grant Roberts filed on 12 August 2021 at [11].
[17] Ibid at [6].
Mr Grant Roberts also asserts that he will be forced into bankruptcy if the stay is granted. He says that the current terms of finance that have been offered will not be offered to him again because the market conditions currently favour him.[18] These risks are unquantifiable and are determined very much by the disposition of the appeal, and any appeal after that. He also asserts that if the land is not transferred now, there is a significantly diminished or negligible opportunity for him to buy it in the future (in accordance with the judgment or under the terms of the appellants’ wills) and that various adverse consequences will flow to him from that lost opportunity.[19] Again, the contingencies upon which those propositions are put are so uncertain that little weight can be attached to them.
[18] Ibid at [7] and [29].
[19] Ibid at [30] – [34].
Mr Grant Roberts deposed to his financial position in paragraphs [14] to [21] of his affidavit and these paragraphs were not the subject of an objection (see Objections to Evidence). Mr Grant Roberts asserts that if the stay were granted, his only income could be derived from the sale of remaining stock, which he could do for the remainder of the calendar year. His affidavit asserts that thereafter, the task of restocking would be more time consuming and costly.[20] He asserts that the feed at the station is “the best it has been in 10 years” due to rainfall.[21] The appellants complain that the paragraph is objectionable as containing reconstruction or speculation, containing opinions with no foundation, and conclusions without facts.[22] Even approaching the deponent’s evidence with some caution in light of the fact that he was not cross-examined about those statements, I consider that certain assertions made are sufficiently uncontroversial to enable some reliance to be placed upon them even if they were, in cross-examination had it been permitted, undermined to some degree. I have accepted the following statements:
·“This great season has been here for about a year and will be for the next 12 months, even if things dry off.”[23]
·“However, the clock is ticking before the next dry spell which might not be a severe drought, but it will come…”[24]
·“Should a stay be granted, by the time the appeal is determined the season or at least the opportunity to benefit from it would have passed or would be coming to an end.”[25]
[20] Ibid at [23].
[21] Ibid at [28].
[22] See, Appellants’ Objections to Evidence filed on 13 August 2021.
[23] Affidavit of Grant Roberts filed on 12 August 2021 at [28].
[24] Ibid.
[25] Ibid.
These are statements which, although they contain some degree of speculation, have fewer variables attached to them than others that the appellants, or the respondent, seek to rely in respect of the issue of prejudice to the appellants. These statements, though relating to future events, are within the knowledge of the respondent as a person who has worked this property for several decades. I accept that these statements may properly be used to inform the question of the consequences of the stay upon the respondent. What can and should be accepted is evidence as to what might occur over the next 3-12 months. The only evidence of that relates to Mr Grant Roberts’ need to act on the orders he has achieved before Blue J to re-stock the property and ensure profit is extracted.
I accept that the risk that Mr Grant Roberts’ position will be detrimentally affected by a stay is significant. I also observe that the appellants will, even if it is not their aim, bring about a situation in which Mr Grant Roberts’ financial circumstances are damaged if they pursue avenues that prolong the disposition of the appeal. Such steps, including revising the Grounds of Appeal, cannot be criticised in the sense that they flow from the appellants’ position that Blue J’s decision and orders were wrong. However, they increase the risk that the benefit of the orders that Mr Grant Roberts secured when he was successful before the trial Judge, is diminished or fatally compromised.
Accordingly, the balance of convenience is in favour of protecting the interests of the successful party at first instance. Assimilating the above and in the exercise of the Court’s discretion, the application to stay is refused.

[2021] SASC 99

16 August 2021