Ryan v Great Lakes Council - [1999] FCA 635

FEDERAL COURT OF AUSTRALIA
Ryan v Great Lakes Council [1999] FCA 635
GRANT RYAN, SCOTT CALLAGHAN, KEVIN GOWER, DAVID HOLNESS, GEOFFREY BENNETT, BRYAN HOCKING AND BROSOW HARDY
v
GREAT LAKES COUNCIL, GRAHAM BARCLAY OYSTERS PTY LTD, CLIFT OYSTERS PTY LTD, M S VERDICH & SONS PTY LTD, CHEVY BAY PTY LTD, JARPAY PTY LTD, C & L COOMBES PTY LTD, M W & E A SCIACCA PTY LTD, TADEVEN PTY LTD, THE OYSTER FARMERS ASSOCIATION OF NEW SOUTH WALES PTY LTD, R A KING (WHOLESALE) PTY LTD, MANETTAS LIMITED, SHONID PTY LTD t/as TIM & TERRY OYSTER SUPPLY, VICTORIAN FROZEN FOOD DISTRIBUTORS PTY LTD, GEORGES OYSTERS PTY LTD, SMITHS OYSTER SERVICE PTY LTD, STATE OF NEW SOUTH WALES and GRAHAM BARCLAY
NG183 OF 1997
WILCOX J
SYDNEY
4 MAY 1999

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG183 of 1997

BETWEEN:

GRANT RYAN
FIRST APPLICANT

SCOTT CALLAGHAN
SECOND APPLICANT

KEVIN GOWER
THIRD APPLICANT

DAVID HOLNESS
FOURTH APPLICANT

GEOFFREY BENNETT
FIFTH APPLICANT

BRYAN HOCKING
SIXTH APPLICANT

BROSOW HARDY
SEVENTH APPLICANT

AND:

GREAT LAKES COUNCIL
FIRST RESPONDENT

GRAHAM BARCLAY OYSTERS PTY LTD
SECOND RESPONDENT

CLIFT OYSTERS PTY LTD
THIRD RESPONDENT

M S VERDICH & SONS PTY LTD
FOURTH RESPONDENT

CHEVY BAY PTY LTD
FIFTH RESPONDENT

JARPAY PTY LTD
SIXTH RESPONDENT

C & L COOMBES PTY LTD
SEVENTH RESPONDENT

M W & E A SCIACCA PTY LTD
EIGHT RESPONDENT

TADEVEN PTY LTD
NINTH RESPONDENT

THE OYSTER FARMERS ASSOCIATION OF NEW SOUTH WALES PTY LTD
TENTH RESPONDENT

R A KING (WHOLESALE) PTY LTD
ELEVENTH RESPONDENT

MANETTAS LIMITED
THIRTEENTH RESPONDENT

SHONID PTY LTD T/AS TIM & TERRY OYSTER SUPPLY
FIFTEENTH RESPONDENT

VICTORIAN FROZEN FOOD DISTRIBUTORS PTY LTD
SIXTEENTH RESPONDENT

GEORGES OYSTERS PTY LTD
SEVENTEENTH RESPONDENT

SMITHS OYSTER SERVICE PTY LTD
EIGHTEENTH RESPONDENT

STATE OF NEW SOUTH WALES
NINETEENTH RESPONDENT

and

GRAHAM BARCLAY DISTRICUTORS PTY LTD
TWENTIETH RESPONDENT

JUDGE:

WILCOX J

DATE:

4 MAY 1999

PLACE:

SYDNEY

EXTEMPORE REASONS FOR JUDGMENT (No.6)

WILCOX J: : This is an application by the second and twentieth respondents for an order staying the orders made by me on 5 March 1999 (Ryan v Great Lakes Council [1999] FCA 177) pending determination of appeals against them. The essential question is whether or not there should be a stay of the judgment of $30,000 in favour of the applicant, Grant Ryan, in respect of his personal claim.
Notices of Appeal have been filed by all three sets of respondents and it is hoped the appeals can be heard in the Full Court sittings to be held in August and September 1999. I have expressed to the parties my hope this will prove possible. Mr Ryan is only one of many claimants, some of whom may be in more necessitous circumstances than he. It is in the interests of everybody concerned with this case, not least the respondents, to put the litigation behind them at the earliest possible moment.
Because of the large amount of documentary evidence, my judgment of 5 March 1999 was lengthy. However, I offer the view that the essential facts are not substantially controversial; the real question is the assessment of those facts, in terms of responsibility of the various respondents. This partly turns on matters of law; it partly depends on the making of judgments concerning comparative responsibility for acts and omission. It ought to be possible for the appeal to be heard within three days, at the most.
My initial reaction to the present application was that it would be sensible for there to be no payment of the judgment debt until after the appeals were disposed of; this would avoid possibly unnecessary steps and obviate any difficulty about repayment, if it happened that Mr Ryan failed against all three respondents. However, Mr Beach has put to me some other considerations. Mr Beach submits that no case is made out for a stay.
In relation to the relevant principle, it is sufficient to note that in Powerplex Services Pty Limited v Data Access Corporation (1996) 137 ALR 498 at 499 a Full Court of this Court followed the approach of the New South Wales Court of Appeal in Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685 at 694 that:
“It is sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of discretion in his favour.”
The Court rejected the view that special reasons had to be shown. On the other hand, as Mr Beach points out, the prima facie situation is that a successful litigant is entitled to the fruits of his or her success, notwithstanding the pendency of an appeal.
The affidavit in support of the present application simply records the history of the matter and the nature of the proceedings the Full Court will have to consider, including cross-claims between the various respondents at first instance. The affidavit in reply, of Andrew Grech solicitor for Mr Ryan, refers to information he has obtained from Mr Ryan about his financial position. It appears Mr Ryan and his wife own a home at Quakers Hill purchased in 1994 for $250,000 and estimated to be now worth about $300,000. The property is encumbered by a mortgage to the Commonwealth Bank, on which the outstanding debt is about $200,000. Mr Ryan has various unencumbered assets amounting to about $15,000. Mr Grech says he is instructed by Mr Ryan that he will apply the proceeds of his judgment to the reduction of his debt to the Commonwealth Bank, thereby reducing his interest liability.
In considering the latter point, it is necessary to bear in mind that the judgment accrues interest whilst unpaid. This interest will be payable to Mr Ryan if he is ultimately successful. The interest rate under the Rules of Court almost certainly exceeds the rate payable under Mr Ryan’s home loan from the Commonwealth Bank. However, as Mr Beach points out, Mr Ryan would very likely be liable to pay income tax on the interest on the judgment, but would not be entitled to deduct from his taxable income the interest payable to the Commonwealth Bank. Accordingly, taxation may offset any nominal advantage in the interest rates. I could not reach a conclusion about this matter without knowing more about Mr Ryan's financial position.
The respondents do not suggest Mr Ryan would be unable to re-pay the $30,000, if the judgment was not stayed and he failed at the appeal. However, they say that, if he put the money into his home loan account, there may be practical difficulties; it is usually not possible to re-draw monies prepaid into a home loan bank account. No doubt, it would be possible for Mr Ryan to re-negotiate his loan with the Commonwealth Bank, and it may be possible for him to raise money elsewhere; however, such steps may involve complication and expense.
I would be loath to see practical problems arise for the sake of immediate payment of what is a comparatively small amount of money, especially if the appeal can be heard at an early date. That reluctance initially inclined me towards ordering a stay. However, Mr Beach indicated his instructing solicitors are prepared to give a personal undertaking to the Court that they will ensure the prompt re-payment of the judgment sum, in the event of it being ultimately held that Mr Ryan is not entitled to the judgment awarded to him on 5 March. I understand this to mean that the solicitors will arrange repayment immediately upon demand, they having the problem of working out the situation with Mr Ryan.
Having regard to that undertaking, I am prepared to refuse the application for the stay. I think the undertaking removes any disadvantage there might otherwise have been in requiring the payment at this stage.
So far as the costs of the application are concerned, I am inclined to think the appropriate course is that they be costs in the appeal, but I will hear counsel if they wish to put a different view.
[There was discussion about costs.]
I note the undertaking to the Court of the partners in the firm Slater and Gordon that they will be personally responsible for prompt repayment to each respondent of any monies paid by that respondent pursuant to the orders on 5 March 1999, if it is ultimately held that a relevant order was wrongly made. On the basis of that undertaking, I dismiss the motion. The costs of the motion of the applicant, Grant Ryan, and of the second and 20th respondents are to be costs of the appeal as between those parties. There will be no order in respect of the costs of the other respondents.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.
Associate:
Dated: 4 May 1999
Counsel for the Applicant:  J Beach
Solicitor for the Applicant:  Slater & Gordon
Counsel for the 1^st Respondent: J Mitchell
Solicitor for the 1^st Respondent:           Norton Smith & Co
Counsel for the 2^nd and 20^th
Respondents:  A P Coleman
Solicitor for the 2^nd and 20^th
Respondents:  Dunhill Madden Butler
Counsel for the 19^th Respondent:         P Rankins
Solicitor for 19^th Respondent:               Crown Solicitor
Date of Hearing:  8 October 1997

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG183 of 1997

JUDGE:	WILCOX J
DATE:	4 MAY 1999
PLACE:	SYDNEY