Ryan v Urban Construct (SA) Pty Ltd (No 2)

[2012] SASC 193

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application)

RYAN v URBAN CONSTRUCT (SA) PTY LTD (No 2)

[2012] SASC 193

Reasons for Decision of The Honourable Justice Nicholson

24 October 2012

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS

CORPORATIONS - WINDING UP - WINDING UP IN INSOLVENCY - STATUTORY DEMAND

The respondent, as plaintiff, brought proceedings in this court seeking damages from the appellant, as defendant, for breach of contract.  Judgment was entered in favour of the respondent in the amount of $2,263,163.52 on 3 August 2012.  The appellant filed a notice of appeal after which the respondent served a statutory demand upon the appellant demanding payment.  An interlocutory application was filed by the appellant seeking a stay of execution of the judgment pending its appeal.  In addition, the appellant filed an originating application to set aside the statutory demand issued by the respondent.

Held:  Application for stay of execution pending appeal and application for the statutory demand to be set aside both refused.

Corporations Act 2001 s459E, 459F, s459G, s459J, s1335; Enforcements of Judgments Act 1991 (SA) s17; Supreme Court Rules 6R 195, 295, 300, referred to.
Ryan v Urban Construct (SA) Pty Ltd [2012] SASC 128; Hackney Tavern Nominees Pty Ltd v McLeod (1983) 33 SASR 590; Advanced Building Systems Pty Ltd v Ramset Fasteners (Aust) Pty Ltd (1997) 145 ALR 121, [1997] HCA 24; Landmark Operations Ltd v J Tiver Nominees Pty Ltd & Ors [2009] SASC 14, [2009] SASC 185 (FC); Powerflex Services Pty Ltd v Data Access Corp (1996) 67 FCR 65; Duke Group Ltd v Pilmer (unreported Supreme Court of South Australia, Mulligan J, 16 June 1998); Technilock (Aust) Pty Ltd v Mondami Pty Ltd [1999] SASC 94; Bartley v Myers [2001] SASC 212; Kalifair Pty Ltd & Ors v Digi-tech (Australia) & Ors (2002) 55 NSWLR 737; Constantidis v Land Corp (NSW) Pty Ltd [2011] NSWSC 74; Masri Apartments Pty Ltd (in liq) v Perpetual Nominees Ltd [2004] NSWSC 255; Binetter v Commissioner of Taxation (No 2) [2011] FCA 1214; Young v Annis-Brown (No 3) [2011] NSWSC 1267; Sewell v Zeiden (No 3) [2010] NSWSC 1361; Batterrham v Makeig [2009] NSWSC 295; Highfield Property Investments Pty Ltd v Commercial & Residential Developments (SA) Pty Ltd [2012] SASC 165; Highfield Property Investments Pty Ltd v Commercial & Residential Developments (SA) Pty Ltd (No 2) [2012] SASC 191; Challenge Charter Pty Ltd v Curtain Brothers (Qld) Pty Ltd [2004] VSCA 66; Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453; Chrisanthos Kostopoulos v GE Commercial Finance Australia Pty Ltd [2005] QCA 311; Tatlers.com.au Pty Ltd v Davis [2006] NSWSC 1055; Midas v Equator [2007] NSWSC 759; Scope Data Systems v BDO Nelson Parkhill [2003] NSWSC 137; Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd (2008) 237 CLR 473; Food Channel Network Pty Ltd v Television Food Network GP [2012] FCA 403; Crannex Farm Pty Ltd v Corowa Fertilizers Pty Ltd [2011] NSWSC 9, considered.

RYAN v URBAN CONSTRUCT (SA) PTY LTD (No 2)
[2012] SASC 193

Civil

NICHOLSON J.

Introduction

1. On 18 December 2007 the appellant,[1] as purchaser, and the respondent, as vendor, entered into a contract for the purchase and sale of real property in Glenelg.  The contract for sale did not proceed to settlement for the reason, inter alia, that the appellant was unable or unwilling to pay the price necessary to complete the transaction.  The respondent, as plaintiff, brought proceedings in this court seeking damages for breach of contract.  On 31 July 2012, the Honourable Justice Peek found in favour of the respondent.[2]  On 3 August 2012, judgment was entered and an order made that the respondent was entitled to recover from the appellant $2,263,163.52 inclusive of interest.[3]

   [1] Throughout this litigation, until recently, the appellant was known as Urban Construct (SA) Pty Ltd. However, on 13 June 2012 the name of the appellant was changed to Commercial and Residential Developments (SA) Pty Ltd; see the affidavit of Todd Hamish Brown, sworn 5 September 2012 at [1].

   [2]    Ryan v Urban Construct (SA) Pty Ltd [2012] SASC 128.

   [3]    In addition, it was ordered that certain moneys that had been held in escrow representing, inter alia, the deposit were to be paid out to the respondent.

2. On 13 August 2012, the appellant filed a notice of appeal against the whole of the judgment. On 20 August 2012, the respondent served upon the appellant a statutory demand pursuant to s459E of the Corporations Act 2001 demanding payment of the sum of $2,263,163.52. 

3. By interlocutory application filed on 5 September 2012[4] the appellant has sought a stay of execution of the order that the respondent is entitled to recover from the appellant the amount of $2,263,163.52, pending the determination of its appeal.  According to the appellant’s written outline of submissions[5] the application for a stay, pending the appeal, has been brought pursuant to the Supreme Court Rules 6R 300, s17 of the Enforcements of Judgments Act 1991 (SA) and the inherent jurisdiction of the Court.  During submissions there was some discussion as to whether the appellant’s application was for a stay of the proceedings or a stay of execution of the judgment.  However, counsel for the appellant confirmed that all that was sought was a stay of execution with respect to the order for the payment of damages. 

   [4]    The first order sought by the appellant in its interlocutory application is “that henceforth the appellant be known as Commercial and Residential Developments (SA) Pty Ltd and that the appellant have leave to amend its Form 1 accordingly”.

   [5]    Filed 12 September 2012.

4. A single justice of this court has power to grant a stay of execution of a judgment of this court pending an appeal to the Full Court.[6]  In support of the application for a stay the appellant read and relies upon affidavits of Todd Hamish Brown, a director of the appellant corporation sworn 5 September 2012 and Erin Shriner, a member of Iles Selley Lawyers, the solicitors for the appellant, sworn 7 September 2012.

   [6]    Supreme Court Rules 6R 295(2).

5. In addition, on 7 September 2012, the appellant filed an originating process in this court.[7] The appellant (as plaintiff, insofar as these original proceedings are concerned) seeks an order pursuant to s459G and ss459J(1)(b) of the Corporations Act 2001 that the statutory demand issued by the respondent (defendant to this new original proceeding) dated 17 August 2012 and served on the appellant on 20 August 2012 be set aside. 

   [7]    No. 1313 of 2012; the trial of issues between the parties, the notice of appeal and the interlocutory application earlier referred to are all part of the proceedings No 745 of 2009 in this court.

6. Ordinarily, a corporation served with a statutory demand pursuant to s459E of the Corporations Act will be taken to have failed to comply with the demand if it has not made payment in accordance with its terms within 21 days after service of the demand.[8] However, if a corporation makes an application, in accordance with s459G, for an order setting aside the demand (and in the absence of any order to the contrary by the court) the period within which the demand is to be complied with is, in effect, extended until 7 days after the application to have the demand set aside is finally determined or otherwise disposed of.[9] It is common ground that the appellant’s originating process complies in material respects with s459G and that, therefore, the extended period within which compliance is required is in operation.

   [8] Sub-section 459F(1), (2)(b).

   [9] Sub-section 459F(2)(a)(ii).

7. In support of its application for the setting aside of the respondent’s statutory demand, the appellant read and relies upon an affidavit of Todd Hamish Brown sworn 7 September 2012.  It has been conceded by the appellant that, in order to succeed with its application to have the statutory demand set aside, it must first succeed with its application for a stay of execution of the judgment.  Whilst the obtaining of a stay of execution will not on its own necessarily lead to an order setting aside the statutory demand, in the circumstances before the court, the application to set aside must fail in the absence of a stay.  In my view, that concession was properly made.

8. On or about 14 September 2012 the respondent filed an interlocutory application in the main proceedings (No. 745 of 2009) seeking, inter alia, an order that the appellant provide security for costs with respect to its appeal.[10]  In support of this application the respondent read and relied upon an affidavit of Christian Haebich, the respondent’s solicitor, sworn on 14 September 2012. 

   [10]   The application was brought pursuant to Supreme Court Rules 6R 195(1)(g) and pursuant to s1335(5) of the Corporations Act.

9. The appellant’s two applications were listed for hearing before me on 17 September 2012.  The respondent’s application for security for costs of the appeal was made specially returnable to that date.  As a consequence, the appellant, as at that date, had had very limited, if any, opportunity to file any answering affidavit material.  There was some, limited, discussion as to what might be an appropriate amount of any security should an order be made, having regard to the respondent’s costs said to have been incurred to date and to be anticipated, as deposed to in the affidavit of Mr Haebich.  However, no submissions as to the merits of the application were put by either party. 

10. Counsel for the respondent submitted that, in the event that the appellant were to succeed with its application for a stay of execution, it would be appropriate for an order for security for costs to be made a condition of the stay.  Counsel for the appellant conceded that such an order was appropriate and that it had instructions to agree an amount in the order of $22,000 as initially put forward by the respondent.  However, it soon became apparent that the respondent had miscalculated this amount.  Counsel for the appellant did not have instructions to agree any additional amount, as now sought by the respondent, nor had there been any discussion between the parties as to the appropriate form of any security that might be ordered.  I will need to give further consideration to the proper disposition of the respondent’s application for security once I have dealt with the appellant’s applications first, for a stay and second, to have the statutory demand set aside. 

    Summary of the facts and contentions as found at trial relevant to the issues raised by the appeal[11]

    [11] The following summary has been adapted from that set out in the appellant’s written outline of submissions and as taken from the reasons of Peek J, [2012] SASC 128. The trial canvassed a number of other issues not taken up by the appeal.

11. On 18 December 2007, the parties entered into a contract for the purchase by the appellant from the respondent of a property at Glenelg.  Settlement was to occur by 31 December 2008.

12. By letter dated 19 December 2008, the appellant advised the respondent that it would not be in a position to settle on 31 December 2008 and sought an extension of the settlement date to 31 December 2009.  The respondent rejected that request.  Settlement did not occur on 31 December 2008.  The respondent issued two notices to complete dated 9 January 2009 and 30 January 2009 respectively.  The latter notice required settlement to occur on 6 February 2009.  Settlement did not occur on 6 February 2009 and by notice dated 11 February 2009, the respondent terminated the contract.

13. Special Condition 5.3 of the contract provides that, in certain circumstances, the respondent was to deliver to the appellant at the time that the appellant paid the price a tax invoice for the taxable supply made by the respondent.[12]  Special Condition 5.2 provides that the amount payable to the respondent under the contract was to be the sum of the price and any Goods and Services Tax (GST) payable or reimbursable by the appellant in respect of the land.  Clause 8.8 of the general conditions of contract required the appellant, in certain circumstances, to pay an amount, on account of GST, additional to and at the same time as, payment of the balance of the purchase price at settlement.

    [12]   Whilst Special Condition 5.3 refers to “the taxable supply made by the vendor… under or pursuant to this contract”, it must be read or construed as “any taxable supply…”.

14. The appellant contended at trial that the respondent vendor’s consideration under the contract (the conveyance of the Glenelg property) was a “taxable supply”, under the law relating to payment of GST (the GST law), and therefore the respondent, as supplier, was liable to pay GST.  However, at no time was the respondent able to provide a tax invoice because she was not registered for GST.  The respondent therefore, was not ready, willing and able to perform the contract because she was in breach of Special Condition 5.3.  As such, the respondent was not in a position to issue valid notices to complete or notices of termination.

15. No oral evidence, apart from that of a valuer, was adduced by either party at the trial; insofar as the matters now the subject of appeal are concerned, the trial proceeded in reliance on documentary evidence only.  Peek J made findings to the following effect.

    (i)The respondent was not obliged to pass on (that is seek to recover from the appellant) an amount equivalent to any GST payable;[13]

    (ii)The obligation on the part of the appellant to pay the balance of the price on the due date for settlement was independent of any obligation on the part of the respondent to deliver a tax invoice in relation to GST;[14]

    (iii)In any event, the respondent could have been ready, willing and able to settle on 31 December 2008 had she been required to be so.  There was no reason to think that she would have failed to register for GST in time for settlement; she was competently represented during the contract negotiations, had been reminded of the need for registration, there was plenty of time between receipt of the appellant’s letter of 19 December and scheduled settlement on 31 December 2008 and it would have been “quick and easy” for her to register;[15]

    (iv)The fact that the respondent was not registered for GST at the time of receipt of the letter from the appellant of 19 December 2008 (in which the appellant indicated that it was not in a position to settle), does not establish that the respondent had not been planning to be registered for GST and would not have carried out that plan but for the letter of 19 December 2008;[16]

    (v)The respondent would not have had any difficulty in performing the minor step of registering for GST in the 12 days between 19 December 2008 and 31 December 2008 and her decision not to further prepare for settlement was taken as a result of her reliance upon statements of the appellant, including in the letter dated 19 December 2008, that it would be unable to settle on 31 December 2008;[17]

    (vi)Similarly, the respondent took the decision not to prepare for settlement (including registering for GST) with respect to the proposed settlement dates of 27 January 2009 and 6 February 2009 as a result of her reliance on the statements of the appellant; she took the view that it was futile to take any further action to prepare for settlement.  Therefore, her failure to have registered for GST did not establish that she was not able to have provided a tax invoice;[18]

    (vii)The appellant was estopped and precluded from relying upon the asserted failure of the respondent to produce or tender a tax invoice or to be registered for GST.[19]

    [13] [2012] SASC 128 at [81].

    [14] At [85].

    [15]   At [101], [102] and [103].

    [16] At [104].

    [17] At [116].

    [18] At [117].

    [19] At [135].

    Principles relevant to an application for stay of execution of judgment

16. The starting point is that the filing of a notice of appeal does not operate to stay execution of the judgment subject to the appeal.[20]  Ordinarily, a judgment creditor is entitled to the benefit of a judgment properly obtained and notwithstanding a pending appeal.

    The norm is no stay.  If there is to be a stay, cause must be shown.  The onus is on the person seeking a stay and the onus is not lightly discharged. …  It is, of course, a judicial discretion and not to be fettered by adjectives such as “special” or “exceptional”.  It is necessary to show appropriate reasons for a stay and to show that the appeal machinery has not been used as an instrument of oppression or merely as a delaying tactic.[21]

    [20]   Supreme Court Rules 6R 300(1).

    [21]   Hackney Tavern Nominees Pty Ltd v McLeod (1983) 33 SASR 590 at 594-595 (White J) citations omitted. And see Advanced Building Systems Pty Ltd v Ramset Fasteners (Aust) Pty Ltd (1997) 145 ALR 121, text at fn 4.

17. With respect to each of the three juridical bases for a stay of execution relied upon by the appellant,[22] the fundamental task before the court is to do what is just in the circumstances of the case.  A stay will be warranted where the justice of the case so requires.  Ordinarily, in exercising the discretion to do what the justice of the case requires a court will balance the interests of the parties and have regard ultimately to the balance of convenience.[23] 

    [22]   See paragraph [3] above.

    [23]   See generally, Landmark Operations Ltd v J Tiver Nominees Pty Ltd & Ors [2009] SASC 14; Powerflex Services Pty Ltd v Data Access Corp (1996) 67 FCR 65; Duke Group Ltd v Pilmer (unreported Supreme Court of South Australia, Mulligan J, 16 June 1998); Technilock (Aust) Pty Ltd v Mondami Pty Ltd [1999] SASC 94; and Bartley v Myers [2001] SASC 212.

18. 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 or damage of some significance if a stay were not to be granted which prejudice or damage could not be redressed by a successful appeal.[24] 

    [24]   Cf;  Kalifair Pty Ltd & Anor v Digi-tech (Australia) Pty Ltd & Ors (2002) 55 NSWLR 737 at [17] and the cases there cited.

    The factual basis of the appellant’s application for a stay in this case

19. According to the affidavit evidence read on behalf of the appellant and, in this respect, not challenged by the respondent, the appellant is not able to satisfy the respondent’s judgment from its own funds.  Further, the appellant is said to be a holding company with no current trading operations.  As at 30 June 2012, it had cash in the bank of $75,899, plant and equipment valued for balance sheet purposes at $150,283, liabilities of $5,466,696 and a nett deficit of liabilities over assets exceeding $5 million. 

20. In its written outline the appellant has submitted.

    If a stay is not granted, the directors of the appellant would appoint a voluntary administrator to the appellant assuming it had not been wound up by the respondent.  Such an appointment would have an obvious prejudicial, if not frustrating, effect on the appeal. 

    The appellant maintained that there are serious issues raised by the notice of appeal and that the appellant has reasonable prospects of succeeding with the appeal.  However, any appeal would be stayed if a winding up order were to be made, and there would be a real risk that any liquidator appointed would not proceed with the appeal.  At the very least, the appellant has submitted, there would be increased cost, loss of control of the appeal by the directors and delay. 

1. As far as the position of the respondent is concerned the appellant submitted that, given the state of the appellant’s balance sheet, the respondent will get nothing from any liquidation and that the only benefit to the respondent of proceeding with a statutory demand and ultimately winding up the appellant would be to prevent the appeal from proceeding. 

2. The appellant submitted that its position is, in effect, analogous with that of the appellants in Kalifair Pty Ltd & Ors v Digi-tech (Australia) & Ors[25] and that the approach and reasoning of the New South Wales Court of Appeal in that case should apply here. 

   [25] (2002) 55 NSWLR 737.

   Thus the relevant principles are analogous to those which govern the grant of interlocutory relief before trial to protect the status quo.  The appellant must show that the appeal raises serious issues for the determination of the appellate court, and that there is a real risk that he will suffer prejudice or damage, if a stay is not granted, which will not be redressed by a successful appeal.  This requirement will be satisfied if the appeal will be rendered abortive or nugatory unless a stay is granted.  If these preconditions are established the Court will then consider the balance of convenience. 

   .  .  .  .

   In the present cases if stays are refused the judgment creditor would be free to serve statutory demands and proceed to winding-up.  The prosecution of the appeals would then be stayed automatically and the stays would continue unless or until the liquidator elected to prosecute the appeals.  The directors would lose control of the litigation and the creditors, including the judgment creditor, would have a say in any decision to proceed. 

   The directors would thus suffer delay and difficulty and incur additional expense in securing a decision from the liquidator to proceed with the appeals. 

   Three of the four appellants have no assets and in these cases the real purpose of any winding-up proceedings can only be to stop the appeals.  …

   The judgment creditor and its solicitors evidently believe that the winding-up of the three appellants would be to their advantage.  The Court should therefore infer that there is a real risk that the making of winding-up orders would prevent the prosecution of these appeals. 

   Where the appellants have no assets the judgment creditor as it has conceded, will not suffer any relevant prejudice if the stay is granted.  The loss of its right to proceed to winding-up to prevent the appeals being heard on their merits does not constitute relevant prejudice for present purposes.  The appellants maybe by required to give security for the judgment creditor’s costs of these appeals, but the judgment creditor will not otherwise be financially prejudiced if the appeals proceed and fail on their merits.

   On the other hand the appellants would suffer irremediable prejudice if they were unable to prosecute appeals which might have succeeded.  The prejudice would include not only the loss of the chance of having the adverse judgments set aside…  .  These losses would be irrecoverable as the appeals are their only avenue of legal redress.[26] 

   [26]   Kalifair at [18], [21]-[26]. The reasoning and approach in Kalifair has been applied to the facts in other cases, for example, Constantidis v Land Corp (NSW) Pty Ltd [2011] NSWSC 743 at [36]; Masri Apartments Pty Ltd (in liq) v Perpetual Nominees Ltd [2004] NSWSC 255 at [24]; Binetter v Commissioner of Taxation (No 2) [2011] FCA 1214 at [10]; Young v Annis-Brown (No 3) [2011] NSWSC 1267 at [4]; Sewell v Zeiden (No 3) [2010] NSWSC 1361 at [9]; and Batterrham v Makeig [2009] NSWSC 295 at [10].

   Will the appeal be rendered nugatory?

3. The evidence as to the appellant’s financial position[27] establishes the following matters, as at 30 June 2012.

   (i)The appellant was operating as a holding company with no current trading operations.[28]  As a consequence, its capacity to improve its financial position  by its own direct efforts must be limited. 

   (ii)The appellant had a nett deficit of liabilities over assets in the amount of $5,235,549. 

   (iii)The appellant’s current liabilities included interest bearing liabilities in the amount of $166,433 whereas its non-current liabilities (apparently not interest bearing) included loans in the amount of $4,509,590. 

   (iv)The appellant is unable, from its own resources, to satisfy the judgment entered in favour of the respondent.[29] 

   [27]   Exhibit THB4 to the affidavit of Todd Hamish Brown sworn 5 September 2012.

   [28] Brown affidavit sworn 5 September 2012 at [6].

   [29] Affidavit of 5 September 2012 at [6].

4. Notwithstanding this apparently dire financial position, it is to be inferred that the appellant is presently willing and able to prosecute the appeal.  In addition, the appellant is willing and, it is to be inferred, able to provide security for the respondent’s costs in the order of at least $22,000.[30]  In addition, the appellant has, to this point, been able to secure the services of solicitors and the services of senior and junior counsel for the trial and solicitors and junior counsel for the appeal and for the prosecution of the present applications.  I do not mean to suggest that the appellant’s financial position has not been accurately disclosed, nor am I in a position to know the terms of any retainer by the appellant of its legal representatives.  However, what is clear is that, to this point, the appellant’s financial circumstances have not prevented it from prosecuting its case either at trial or on appeal. 

   [30]   I recognise that the concession made by counsel for the appellant in this respect during submissions did not necessarily go so far as indicating that the appellant would be able to deposit a cash amount of $22,000 by way of security for costs.

5. There is no evidence before the court as to the name of the debtor or debtors to whom the appellant owes, in total, $4,509,590, the nature of their relationship to the appellant, or the terms as to when and how the loans are to be repaid, other than that they have been characterised for accounting purposes as “non-current”. 

6. As far as the non-current loan or loans totalling $4,509,590 are concerned, any security that may have been given over specific assets or by way of a floating charge over all assets can only be of negligible value to the creditor(s).  It is conceivable that the loans are supported by director or shareholder guarantees or by way of security given over other property owned by the director(s),[31] the shareholder(s) or some other related party.  It is conceivable that the loans are owed to a related party and are simply unsecured.  The court has heard no evidence about such matters.  The appellant, in disclosing its financial position for the purpose of the present application, has not been fulsome in these respects. 

   [31]   No company search has been exhibited to any of the affidavits read in these proceedings so as to indicate the number and identification of director(s) and shareholder(s).  However, during submissions counsel for the appellant alerted the court to the fact that there were three directors.

7. What can be inferred, on balance, is that the creditor(s) concerned have acted benignly towards the appellant to this point and, perhaps more importantly, would have an interest in the successful prosecution of any appeal.

8. It is true that, if a liquidator of the appellant were to be appointed on a creditor’s petition, the appeal would be stayed, at least temporarily.  However, to the extent that the appeal were to be seen by the liquidator, after taking advice, to have merit, it would be in the interest of creditors (apart from the respondent) for the liquidator to elect to ratify and pursue the appeal.  If so, and provided that an indemnity with respect to the costs of the appeal (including any adverse costs orders) were to be made available by the director(s), shareholder(s), a related company or the appellant’s creditors (other than the respondent), the appeal might well proceed. 

9. There is no evidence before the Court to support the proposition that the director(s) of the appellant would not be able to arrange for the requirements of any liquidator, in these respects, to be met. 

10. Furthermore, the Australian Taxation Office is or is likely to become a significant creditor of the appellant.  The amount provisioned as a current liability for income tax of $731,000 far exceeds total current and non-current assets of $231,147.[32]  In addition, another judge of this court has recently delivered judgment against the appellant in a different matter.[33]  Blue J ordered judgment against two parties, including the appellant, in the amount of $2,443.195.20.

    [32]   There is no corresponding asset for this provisioned liability.

    [33]   Highfield Property Investments Pty Ltd v Commercial & Residential Developments (SA) Pty Ltd [2012] SASC 165 and Highfield Property Investments Pty Ltd v Commercial & Residential Developments (SA) Pty Ltd (No 2) [2012] SASC 191. By the affidavit of Mr Brown sworn 5 September 2012, the appellant put the court on notice that Blue J had reserved his decision in this matter. Judgment was delivered after I reserved my judgment.

11. Even if a stay of execution of the respondent’s judgment in these proceedings were to be granted, the appellant would remain at risk of winding-up proceedings being pressed by another creditor or other creditors in any event. 

12. I accept that were the appellant to enter voluntary or involuntary liquidation before the appeal was heard, as a consequence of the respondent filing a creditor’s petition, the appeal might be delayed and some further expense caused to any persons interested enough to seek to persuade the liquidator to continue with the appeal.  However, on the evidence before the Court, I am not satisfied that the appeal would necessarily be stultified and thereby rendered nugatory. 

13. Similar considerations moved McHugh J to refuse a stay, pending an appeal to the High Court for which special leave had been granted, in Advanced Building Systems Pty Ltd v Ramset Fasteners (Aust) Pty Ltd.[34]

    … As Brennan J pointed out in Sali v SPC Ltd, one has to identify what it is that is necessary to preserve by granting the stay.  In the present case, that subject matter is the right of appeal, but that right of appeal does not stand in need of any preservation.  Whether or not a stay order is made, the appeal can be heard and determined.  It can be heard and determined because it would be open to the liquidator on any winding-up to pursue the appeal.  However, I would not seek to deal with this case on that technical basis.  As Justice Dawson pointed out in Federal Commissioner of Taxation v Myer Emporium Ltd (No 1), it is relevant in determining whether or not to grant a stay that:

    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.

    (Citations omitted.)

    Nevertheless, on the facts before him, McHugh J did go on to refuse the stay.  After analysing the accounting evidence available with respect to the insolvent applicant company before his Honour and the lack of evidence showing the relationship between the applicant company and other related companies, his Honour was not satisfied that the applicant company had demonstrated that it could not raise the money sufficient to discharge its judgment debt by using its trading stock as security. 

    [34] [1997] HCA 24; (1997) 145 ALR 121.

14. I appreciate that the appellant in the present case is not in the same position and, in particular, that it does not have significant trading stock.  Nevertheless, the excess of current liabilities ($5,415,000) over current assets ($1,500,000) in Advanced Building Systems was, as in the present case, very substantial. 

15. McHugh J evidently was influenced by the fact that a very large proportion of the current liabilities ($4,822,687) was owed to a related company and that the applicant company had a history of generating funds by way of borrowing from related companies.  In addition, McHugh J observed.

    When the matter comes before the company judge… [the applicant] can ask the judge to adjourn the winding-up application.  It can also, if it wishes, seek to borrow funds from related companies or from commercial lenders perhaps backed by guarantees of the directors or otherwise.  But this is a commercial matter.  …

16. McHugh J also noted that the sole shareholder and controller of the applicant had offered security over the company’s trading stock and was prepared to undertake to maintain stock at current levels subject to normal trading and to procure an undertaking from a related company that was owed $4,822,687 that it would not enforce that debt.  Nevertheless, this was not sufficient for his Honour.

    [The judgment creditor] has a debt owing to it which it has been kept out of for a considerable period of time.  It is true that the Court has granted special leave to appeal.  But, nevertheless, it needs to be understood that judgments given by courts are not provisional judgments until they are subsequently confirmed by appellant courts.  They create legal rights and duties.  A party which is entitled to the benefit of a judgment is also entitled to enforce it, even by winding-up the debtor if it is necessary to do so. 

17. In the present case, the appellant has been even less fulsome with the evidence concerning its relationships with other companies, its director(s) and shareholder(s) and with the evidence as to its financial position than was the case before McHugh J in Advanced Building Systems.  No historical financial information has been made available such that might enable the court to access any capacity, demonstrated by the appellant over time, to borrow money or to assess the extent to which the appellant in the past may have been granted financial accommodation by its creditors.  Nothing has been put concerning the financial circumstances of the group of which the appellant is a part or of the director(s) or shareholder(s) of the appellant.  In these circumstances, I am not able to infer that the appellant would not continue to be able to find support, at least to the extent of being able to procure an indemnity for any liquidator in the event that, on an independent review, the appeal was found to have merit. 

18. Challenge Charter Pty Ltd v Curtain Brothers (Qld) Pty Ltd[35] also concerned an application for a stay of execution of judgment by a corporate judgment creditor where it was conceded that it was unable to pay the amount due under the judgment or any significant part thereof.  The unaudited accounts demonstrated no significant income and a deficiency of assets over liabilities.  The applicant for the stay was able to continue to operate only with the support of related entities.  The application involved two judgment debtors, one of which (Timor Star) was in a financial situation significantly better than that of the other (Challenge Charter).  Ultimately, Timor Star obtained a stay pending the hearing and determination of its appeal, on terms, but Challenge Charter was refused a stay. 

    [35] [2004] VSCA 66.

19. Challenge Charter sought its stay on the bases that: its appeal was based on reasonable and arguable grounds; that without a stay it may not be possible to restore it to its former position because of the alleged poor financial state of the judgment creditor or because Challenge Charter would end up being wound-up (a statutory demand having been served); and that Challenge Charter was unable to pay the amount of the judgment against it or any significant part, such that a stay would not cause the judgment creditor any relevant prejudice. 

20. In considering the approach taken in Challenge Charter Pty Ltd it must be borne in mind that, unlike in this State, the law in Victoria, at least as it then applied, required special or exceptional circumstances to be shown before a stay might be granted.  This is plainly a more stringent test than that which applies to the present proceedings.  Nevertheless, certain observations in the case remain of assistance.  Callaway JA said this.[36]

    I turn to the threat of liquidation, noting at the outset that there is reason to be cautious in considering the decision of the New South Wales Court of Appeal in Kalifair Pty Ltd v Digi-Tech (Australia) Ltd on which the appellants relied.  Its reasoning is, in part, dependent on Alexander v Cambridge Credit Corporation Ltd and the proposition that it is not necessary for the grant of a stay that special or exceptional circumstances be made out.  Even more fundamentally the decision appears to announce a black and white rule.  I say “appears” advisedly and with respect, because the judgment may reflect concessions that were made, including those recorded at [14] and [25]. 

    In my opinion, the relevance of the threat of liquidation and the weight to be given to it varies from case to case.  Sometimes it is significant that a winding-up order will bring a company’s business to an end or diminish the value of its assets or both or that the company, regarded as a legal person, will cease to exist when the winding-up is completed.  Whatever may be said of Timor Star, none of these considerations has much weight in relation to Challenge Charter.  It has no significant business or assets other than the Xanadu and the shares in Timor Star.  It has only one director and is the wholly owned subsidiary of another proprietary company.  In such a case it is not irrelevant that the liquidator may still pursue the appeal if he or she considers that to be worthwhile.  The liquidator would take into account the director’s view and the director would be well placed to assist the liquidator if the appeal proceeded.  It is quite wrong to regard it as the director’s appeal.  It is the company’s appeal.  Mr Sifris submitted that it was unfair to the director to displace him, but that is not the test.  I am not persuaded that it would be unfair to Challenge Charter for a liquidator to evaluate the prospects of its appeal.  An unpaid creditor is prima facie entitled to use the processes of company law to recover a debt owing to it and there is a public interest in insolvent companies being wound up.  (Citations omitted, but the emphasis in the first paragraph supplied.)

    In a footnote placed at the end of that quotation, his Honour observed “In some cases it may be relevant to the grant or refusal of a stay that a pending appeal may be taken into account on an application for winding-up”.[37]

    [36]   At [16] and [17].

    [37]   See also the observation of McHugh J in Advanced Building Systems, to similar effect, set out above.

21. Chernov JA agreed with the conclusions reached and reasons given by Callaway JA.[38]

    I also agree with his Honour that, on an application for a stay of the impugned judgment pending the hearing and determination of the appeal, the relevance of a threat of liquidation of the applicant if no stay were granted and the weight to be given it vary from case to case. 

    [38] At [20].

22. I, with respect, agree with and adopt the observations of Callaway JA set out above.  I take the view that his Honour’s reservations concerning Kalifair[39] and observations more generally are of relevance to the present application and notwithstanding that there is no requirement on the appellant here to show special or exceptional circumstances.  A similar approach was taken by the Queensland Court of Appeal in Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd.[40]

    [39]   Kalifair Pty Ltd & Ors v Digi-tech (Australia) & Ors (2009) 55 NSWLR 737.

    [40] [2008] 2 Qd R 453 at [16]ff.

    Does the appellant have a good arguable case on appeal?

23. The starting point is the appellant’s grounds of appeal as recorded in its notice of appeal filed on 13 August 2012.  The appellant lists some 10 grounds of appeal together with various sub-grounds extending over more than three pages of the notice of appeal.  However, they are all directed at various aspects of the parties’ contractual obligations ultimately referable to the question of whether or not GST would have been payable by the respondent based on the contract price for the conveyance of the property (the asserted “taxable supply”) in the event that the matter had proceeded to settlement.  The appeal grounds are lengthy, detailed and to some extent interrelated.  Nevertheless, for present purposes they can be distilled into the following.

1. By grounds one and two the appellant complains, in effect, of the failure by the trial Judge to determine whether the proposed transfer of the land by the respondent to the appellant was to be characterised as a “taxable supply” for the purposes of the GST law.   

2. By ground three, the appellant complains, in effect, that the trial Judge erred in his findings with respect to a construction issue which is essential to the parties’ dispute, that is, whether or not, in the circumstances, the respondent was obliged to provide the appellant at settlement with a GST tax invoice.  In essence, the Judge construed the contract in the manner contended for by the respondent and to the effect that only if the respondent took the view that GST was payable and, as a result, wished to pass on to the appellant any amounts payable, as a charge additional to the initial price of $3 million, was the respondent obliged to supply a GST tax invoice.  However, the appellant contended, in effect, that the transaction did give rise to an obligation to pay GST and that the respondent had an absolute contractual obligation to provide to the appellant a GST tax invoice even in circumstances where (as in the present case) she did not choose to pass on any GST obligation.

3. By ground four the respondent complains, in effect, of the trial Judge’s finding that, any such contractual obligation imposed on the respondent (to provide a GST tax invoice to the appellant) was independent of the appellant’s obligation to pay the price at settlement.  The two such obligations, according to the trial Judge, were not mutually dependent or concurrent obligations and as such, any failure by the respondent to provide or to be ready, willing and able to provide a GST tax invoice at settlement did not preclude her from issuing a notice to complete and insisting on settlement. 

4. By grounds five, seven and eight the appellant complains, in effect, of the trial Judge’s determinations that, as a matter of fact, the respondent was capable of having herself registered for GST during the period 19 December and 31 December 2008, but did not do so because of the indication by the appellant in its letter of 19 December that settlement would not be taking place and, as a consequence thereof, that the respondent was to be characterised as being ready, willing and able to settle. 

5. By grounds six, nine and 10 the appellant complains, in effect, of the trial Judge’s finding that in any event, the appellant was absolved from any obligation to supply a tax invoice and that the appellant was estopped from relying on the failure of the respondent to produce or tender a tax invoice at any time, as a consequence of the indication given by the appellant in its letter of 19 December 2008. 

6. There are other sub-grounds or arguments put by the appellant in its notice of appeal with which it will need to succeed if it is to be successful ultimately on appeal.  However, the five issues identified, albeit in general terms, above represent the appellant’s essential complaints.

7. This is not the occasion to express a final view as to the appellant’s prospects of success with any of its grounds of appeal. 

   Usually it is not possible for a Judge to come to such a firm view of the appellant’s prospects of success (or lack of them) that the application for a stay pending appeal can be resolved by according greater weight to prospects of ultimate success than to considerations of inconvenience in striking the proper balance between the competing interests of the parties. 

   .  .  .  .

   [G]enerally the court which considers an application for a stay will not have the means or the opportunity to do more than make an assessment of whether the appellant has an arguable case… (Citations omitted.)[41]

   Nevertheless, whether or not an appellant has a good arguable case on appeal is a consideration relevant to the exercise of the discretion to grant a stay of execution pending appeal although, where there is an arguable case, the matter will usually be determined on the basis of considerations of convenience.[42]  Keane JA, in Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd,[43] returned to this issue.

   In cases where this Court is able to come to a preliminary assessment of the strength of the appellant’s case, the prospects of success on appeal may weigh significantly in the balance of relevant considerations.  The prospects of success will obviously tend to favour the refusal of the stay if the prospects of the appeal could be seen to be very poor.  That is because, if there is obviously little prospect of ultimate reversal of existing orders, the concern to ensure that the existing orders can be overturned without residual injustice will have less claim on the discretion than might otherwise be the case. 

   The extent to which a preliminary assessment of prospects of success, which suggest that the prospects of success are good, should dispose the Court towards granting a stay may be somewhat less clear.  It was, however, accepted by Stork that Cook’s appeal is arguable and Cook did not seek to argue that its prospects of success on the appeal are so strong so as to overwhelm the importance of the consideration that the Court should impede the enforcement of their orders only so far as is necessary to ensure that the orders which might ultimately be made by the Court can be given effect without leaving a residue of injustice.

   Accordingly, the focus of this Court’s attention must be upon whether Cook’s appeal might be rendered nugatory by a refusal of the stay and whether Cook would be irremediably prejudiced if the stay were not granted and its appeal were ultimately to be upheld.

   The same considerations have been recognised by this court.[44] 

   [41]   Chrisanthos Kostopoulos v GE Commercial Finance Australia Pty Ltd [2005] QCA 311 at [66] and [68] (Keane JA with whom McMurdo P and Dutney J agreed).

   [42]   Chrisanthos Kostopoulos at [69].

   [43] [2008] 2 Qd R 453 at [13]ff. McMurdo P again and, this time, White JA agreed with Keane JA.

   [44]   Landmark Operations Ltd v J Tiver Nominees Pty Ltd & Ors [2009] SASC 185 (FC) and [2009] SASC 14 (Sulan J).

8. The court in the present case is in a better position than is usual to form a view as to the appellant’s ultimate prospects of success, if only because the issues on appeal essentially raise questions of construction of the parties’ contract and the application of well-trodden (although complex) principles of real property conveyancing law.  Furthermore, this is not the type of case where any challenge on appeal to the trial Judge’s findings of fact would need to be tempered on the basis that his Honour had the advantage of seeing and hearing witnesses who gave oral evidence; there were no such witnesses other than a valuer whose evidence, according to the trial Judge, had no bearing at all on the GST matter. 

9. However, I recognise that I have not had the benefit of full argument with respect to the various grounds of appeal, nor has the court been provided with all of the documentary exhibits that were before the trial Judge. 

10. Notwithstanding this, I am in a position to make a number of observations.  However, in order to put these observations into a useful context it is helpful that I set out some of the key terms of the parties’ contract.  At the end of this judgment is a Schedule which repeats the “Schedule of Key Terms of the Contract” to be found at the end of the judgment of the trial Judge in this matter.[45]  The footnotes in the Schedule are those of the trial Judge.

    [45] Schedule to [2012] SASC 128.

11. An initial general observation is this.  This is not a case where success on any ground of appeal will lead to the appellant succeeding with the appeal and a vacation of the trial Judge’s order that it pay to the respondent the sum of $2,263,163.52.  On my reading of his Honour’s judgment and of the notice of appeal, the appellant must succeed with every one of the five complaints earlier identified.  In addition, each of these complaints is by and large independent of the others.  In practical terms, and unless it can be said that the trial Judge plainly erred with respect to each one of these five areas of complaint, the prospect of the appellant succeeding with all five, so as to overturn the trial judgment, must be significantly lower than its prospect of succeeding with any one of the complaints. 

12. In my view, having reviewed the trial judgment, it cannot be said that his Honour was plainly wrong with respect to any of the matters that his Honour determined.  That is not to say that his Honour necessarily will be found to have been correct in all of his findings and determinations.  For the reasons given earlier, I am not in a position to express a final view in that respect.  The point I am making at this stage is, given that the appeal involves at least five independent underlying complaints and given the apparently comprehensive, detailed and persuasive reasoning process undertaken by the trial Judge with respect to each one, the appellant will face a very difficult task in persuading a Full Court to overturn the trial Judge at every point.  I will not take the time needed to address all of the five complaints in any detail.  However, there are at least two with respect to which, the appellant will face particular challenges. 

13. The first complaint in the notice of appeal is to the effect that the trial Judge failed to determine whether the proposed transfer of the land was to be characterised as a “taxable supply”.  A determination of this question in favour of the respondent, alone, may well have brought the appellant’s defence to a halt.  Special Condition 5.3, and its proper construction when read in the context of the surrounding provisions and the contract as a whole, was fundamental to the appellant’s defence at trial. 

    Without limiting or negating any of the Vendor’s [respondent’s] obligations under the GST Law, the Vendor [respondent] shall deliver to the Purchaser [appellant] at the time that the Purchaser [appellant] pays the Price a tax invoice for the taxable supply made by the Vendor [respondent] to the Purchaser [appellant] under or pursuant to this Agreement.  (Emphasis supplied.)

14. There was only one proposed “supply” from the respondent to the appellant intended to take place pursuant to the contract and that was the transfer of the land or property the subject of the sale.  Whether or not that would constitute a taxable supply pursuant to the GST law would depend, in part, on the nature of the use to which the property had been put prior to transfer.  Where clause 5.3 refers to “the taxable supply” this can only be read or construed as any supply made by the vendor (respondent) that is to be properly characterised, in law, as a taxable supply.[46]  In other words, unless the transfer of the property in question would be, in all of the circumstances, properly characterised as a “taxable supply” under the GST law there would be no basis upon which Special Condition 5.3 could operate and no warrant, at all, for the vendor (respondent) to provide a tax invoice to the purchaser (appellant) at settlement. 

    [46] The trial Judge in his judgment made the same point at the end of paragraph [81].

15. The trial Judge was able to decide the “GST contention” in favour of the respondent on other grounds.  As such, his Honour only briefly dealt with the question of whether or not there was a “taxable supply”.  Ultimately, he found it unnecessary to form a concluded view.[47] 

    [47] [2012] SASC 128 at [126]-[133].

16. The trial Judge explained the context in which this issue arose and was dealt with at trial.[48]

    Thus it was that both sides descended into a lengthy analysis of the GST law with many differing views and interpretations being propounded in relation to many aspects of the legislation, no doubt of great interest to some.

    However, with great respect to both counsel, I bear in mind the setting in which this argument took place.  The broad “GST contention” had been raised late and the intricate cascading matters that then emerged (one thing leading to another in the usual way) in many instances were largely being considered on the run.  The transcript will disclose various instances where there is real doubt as to the particular and precise terms of the legislation (and regulations) that were in force at particular dates and, indeed, as to precisely what were the relevant times that governed certain difficult GST related matters. 

    His Honour went on to make the following observations[49] which, to my mind, are of significance to the question of whether or not this issue will be capable of being determined in favour of the appellant either by the Full Court at the appeal or by the trial Judge if the question were to be remitted for determination.

    Such difficulties are further exacerbated by the possibility (or likelihood) that various factual matters that might underlie and affect the correct answers to relevant questions have not been fully investigated having regard to the late stage when the “GST matter” was raised.  I should add that the trial itself was basically a trial on the papers that neither the plaintiff nor any representative of the defendant, nor any expert witness as to the GST regime was called.  I am far from confident as to a number of matters, including:  the correct ultimate answer to the question of whether the sale of the property would have constituted a “taxable supply”; the correct answers to various prior questions that might lead to that ultimate answer; and whether such questions could ever be definitively and confidently answered on the limited material now before me. 

    [48]   At [130]-[131].

    [49] At [132].

17. His Honour went on, as I have said, to indicate that he was of the view that it was unnecessary to come to a conclusion as to whether a “taxable supply” was as a matter of fact and law, involved.  He did so because, on the basis of “an assumption (but not a decision) that a taxable supply was involved”, his Honour found against the respondent in any event on numerous other grounds.

18. I have not had an opportunity to review the material or the submissions that were before the trial Judge on this topic.  Nevertheless, his Honour’s observations suggest that the respondent is likely to have significant difficulty in pointing to an evidentiary basis sufficient to enable the question of whether or not a taxable supply was involved to be finally determined, either by the Full Court or the trial Judge following a remittal.  The answer to this question is fundamental to the application to the facts of Special Condition 5.3, how ever it were to be construed.  Had there been an evidentiary basis before the trial Judge sufficient to enable the issue to be determined, it is hard to imagine it would not have been determined.

19. Appeal ground three raises a question of contractual construction.  Was the vendor (respondent) obliged to provide the purchaser (appellant) at settlement with a GST tax invoice in circumstances where she was making no claim for reimbursement of GST payable by her?  The issue was dealt with by the trial Judge at paragraphs [78] to [87] of his judgment. 

20. The factual background that gave rise to this issue can be briefly summarised.  At all material times the sale price agreed upon by the parties was $3 million.  Prior to the execution of the final form of contract there were discussions between the parties’ legal representatives and disagreement over whether or not GST on that price of $3 million might become payable by the vendor (respondent).  It was the purchaser’s (appellant’s) position, prior to contract formation, that the transaction as contemplated would not attract an obligation to pay GST. 

21. An email dated 25 October 2007 from the company secretary and corporate counsel for the appellant[50] directed to the solicitors for the respondent contained the following.

    I don’t think there is anything more we could say to try and persuade you or Dr Ryan that GST would not apply.  Given the factors described below, we understand your concerns.[51]

    At this time the position of the respondent with respect to this issue would seem to have been one of uncertainty and concern to ensure that she was fully protected by the terms of the contract in the event that she were to be liable for GST on the transaction.  The email just referred to continued:

    Accordingly, we are prepared to purchase the property at the price agreed plus GST.  Of course, we will need a tax invoice, at settlement (I assume Dr Ryan is registered for GST – she will need to reference an ABN number). 

    Assuming you agree, I attach amended Special Conditions…

    [50]   The email came from the company secretary and corporate counsel of Urban Construct Pty Ltd, presumably, a related company.  However, the author purported, by its contents, to represent the position of the appellant.

    [51]   Exhibit ES1 to the affidavit of Erin Shriner sworn 7 September 2012. 

22. Ultimately, after further negotiations regarding the form of contract, the contract as entered into contained, inter alia, the various terms and conditions as set out in the Schedule appended to these reasons.  At no time was there any understanding between the parties that the respondent was to receive by way of consideration for the transfer of the property, save for any GST considerations, an amount more or less than $3 million.  The intention of the parties was to ensure that in the event that GST were to become payable, the appellant would pay to the respondent on settlement an additional $300,000 but, of course, be entitled to make a claim on the Commissioner of Taxation to be reimbursed that amount.  A tax invoice would be necessary to facilitate this. 

23. It is with this background in mind that the relevant terms of the contract fell to be construed.  I have reviewed the reasoning of the trial Judge on this question of construction leading to his conclusions at paragraphs [81] and [82].  I also have reviewed the relevant contractual provisions including, in particular, General Condition 8.8 (“Goods and Services Tax”) and Special Condition 5 (“GST’).  I accept, that Special Condition 5.3 when read literally and in isolation, imposes an obligation on the vendor to deliver to the purchaser “at the time that the purchaser pays the price” a tax invoice for the taxable supply made by the vendor to the purchaser under or pursuant to the agreement. 

24. I have already dealt with the notion that this Special Condition will only have work to do if there has been, in fact and law, a taxable supply.  However, even if the appellant were to succeed in demonstrating the existence of a taxable supply there is another fundamental problem for the appellant’s case.  Special Condition 5.3 cannot be read and construed in isolation.  I do not stay to articulate a detailed exercise in contractual construction.  However, when Special Condition 5.3 is read in the context of Special Condition 5 as a whole and in the context of the contract as a whole including, in particular, General Condition 8.8[52] the conclusion reached by his Honour at paragraph [82] is highly persuasive. 

    Thus I consider that the meaning of Special Condition 5 is that if the vendor [respondent] considers that GST is payable and decides to pass on a charge for an equivalent amount to the defendant [purchaser/appellant], then the defendant [purchaser/appellant] must pay that amount at settlement, but only if the plaintiff [vendor/respondent] supplied a GST tax invoice.  (Emphasis in the original.)

    At no time did the respondent seek reimbursement from the appellant of any GST that might have become payable.  Each of the notices to complete required payment at settlement of $3 million only, less the deposit and subject to usual adjustments.  Whether or not the respondent could have demanded a further $300,000 in exchange for a tax invoice after settlement in the event that the respondent was charged GST is a question that did not need to be answered at the trial.

    [52]   And notwithstanding Special Condition 1.3 “Should there be any inconsistency between these Special Conditions and the Standard Terms and Conditions then these Special Conditions shall prevail”.

1. The other three complaints, identified earlier, give rise to quite complex questions of fact and law.  Given the position I have reached to this point it is unnecessary that I express a view with respect to each of these three complaints.  I am satisfied that, even ignoring for the present that the appellant will also need to succeed with each of these three areas of complaint, the appellant has, at best, only a moderate prospect of succeeding with the appeal. 

   Conclusion with respect to the application for a stay

2. I am not satisfied that there is a real risk that the appellant will suffer prejudice or damage of significance as a result of a stay not being granted in these proceedings which prejudice or damage could not be redressed by a successful appeal.  In particular, I am not satisfied, on the evidence before the court, that the appeal itself would be stultified as a result of a refusal to order a stay in these proceedings. 

3. I have taken account of the fact that two of the three directors of the appellant company have indicated a willingness to give an undertaking to the court and to the respondent not to deal with the assets or revenue of the appellant company other than in the ordinary course of business, in the event that a stay were to be granted.[53]  I have also taken into account the fact that there has been no submission put on behalf of the appellant to the effect that there is any concern that the monies already paid to the respondent pursuant to the judgment under appeal would not be repaid in the event of a successful appeal. Understandably, given the assumption underlying the appellant’s application for a stay, that it has no capacity to pay the balance of the judgment, no concern has been raised as to the respondent’s capacity to reimburse that significantly larger amount in the event that the appeal were to succeed.  I also take the view that the respondent has been kept out of her loss and damage for some years now and notwithstanding that judgment on her claim was obtained only last August.  Ordinarily, she would be entitled to take such steps as are open to her to recover under the judgment and to do so as soon as practicable.  I do not accept that the respondent will not suffer prejudice by the further delay in being able to take steps to enforce her judgment that the granting of a stay would cause.[54] 

   [53]   Apparently as at the time of submissions the third director was overseas and unable to be contacted. 

   [54]   There would not be just the further delay in waiting for this appeal to be heard but also the additional delay before any judgment on appeal would be delivered.

4. I also do not accept that the only purpose behind the respondent seeking to enforce the judgment by the service of a statutory demand is to prevent the appeal from proceeding.  The respondent’s understanding is that the appellant is part of a corporate group that has been financially successful in the past.  The appellant has director(s), shareholder(s) and creditors any or all of whom may have an interest in keeping the appellant out of liquidation.  The respondent is entitled to pursue the appellant for payment of the amount due by such legal means as are open to it.

5. I have taken account of all of these matters against the background that in my view the appellant has, at best, only a moderate prospect of succeeding with the appeal.  In all the circumstances, the balance of convenience, that is, when proper weight is given to the respective interests of the parties, is such that the basis for a stay of execution of judgment has not been made out.  The appellant’s application for a stay is refused.

   The application to set aside the statutory demand

6. Section 459J of the Corporations Act provides:

   (1) On an application under section 459G, the Court may by order set aside the demand if it is satisfied that:

   (a)  because of a defect in the demand, substantial injustice will be caused unless the demand is set aside; or

   (b)  there is some other reason why the demand should be set aside.

   (2)  Except as provided in subsection (1), the Court must not set aside a statutory demand merely because of a defect.

   There has been no suggestion that there is a defect in the demand. The only basis on which the appellant has brought its application is that set out in s459J(1)(b).

7. There is authority to the effect that “some other reason”, as envisaged by s459J(1)(b), can be made out where a company has obtained a stay of execution and has instituted an appeal that has reasonable and arguable grounds such that the justice of the case would require the statutory demand to be set aside.[55] However, ordinarily, a basis for “some other reason” will not be made out where there is no stay in place. A pending appeal in the absence of a stay is not, of itself, a ground for setting aside a statutory demand pursuant to s459J(1)(b),[56] at least in the absence of the type of considerations that faced Hammerschlag J in Midas v Equator.[57]Such considerations are not present here. The appellant has been refused a stay. It cannot be said that there exists “some other reason” under s459J(1)(b) when regard is had to this refusal and the reasons for this refusal. The appellant’s application for the statutory demand to be set aside is also refused.

   [55]   Tatlers.com.au Pty Ltd v Davis [2006] NSWSC 1055 (Barrett J).

   [56]   Scope Data Systems v BDO Nelson Parkhill [2003] NSWSC 137; Deputy Commissioner of Taxation v Broadbeach Properties Pty Ltd (2008) 237 CLR 473; Food Channel Network Pty Ltd v Television Food Network GP [2012] FCA 403; Crannex Farm Pty Ltd v Corowa Fertilizers Pty Ltd [2011] NSWSC 9.

   [57] [2007] NSWSC 759.

   The respondent’s application for security for costs

8. That leaves the respondent’s application seeking security for its costs of the appeal.  The concession given by the appellant in this respect was given in the context of the appellant’s then extant application for a stay and the proposition put on behalf of the respondent to the effect that any stay, if granted should be conditioned on the appellant providing security for the respondent’s costs of the appeal.  The merits of the respondent’s application for security were not argued.  In these circumstances, I will make no orders at this stage with respect to the respondent’s application.  Given the circumstances, it is likely to be a matter readily capable of resolution by the parties. 

9. However, if it becomes necessary I will hear from the respondent further on its application and from the appellant as to whether or not its earlier concession, that the circumstances do warrant the making of a security for costs order in an amount to be determined and in a form to be determined, was unconditional or, if not, whether or not it nevertheless remains good.

10. I also will hear the parties further on the matter identified in fn 4 above and on the costs of the appellant’s two unsuccessful applications.

    SCHEDULE – KEY TERMS OF THE CONTRACT

    1      INTERPRETATION

    …

    1.10“GST” means any goods and services or similar or comparable tax imposed by and defined in the GST Law.

    1.11“GST Law” means the A New Tax System (Goods and Services Tax) Act 1999 and any other Act or Regulation pursuant to, associated with, amending or replacing the Act.  Any expression used in this Agreement that is defined in the GST Law has that defined meaning.

    …

    1.17   “the Price” means the sum identified as the Price in the Schedule;

    1.18“the Property” means the Land together with the included Chattels and the Consumer Credit Chattels as detailed in the Schedule;

    1.19   “the Purchaser” is the party named and described in the Schedule:

    1.20“rates and taxes” includes any tax, levy, charge, impost or other charge made by any Governmental, semi-Governmental or local Governmental authority payable by the Vendor, on or in respect of the Land.

    1.21“Settlement” means completion of this Agreement for Sale and Purchase by Transfer of the property from the Vendor to the Purchaser;

    1.22“the Settlement Date” means the date shown in the Schedule and fixed by this Agreement as the date for settlement;

    1.23   “Special Condition” means a special condition set out in the Schedule;

    …

    1.26   “the Vendor” is the party named and described in the Schedule:

    …

    2     AGREEMENT FOR SALE AND PURCHASE

    Subject to clause 8.8 and the Special Conditions, the Vendor agrees to sell the Property to the Purchaser who agrees to buy the Property from the Vendor for the price together with any GST applicable.

    …

    3      THE PRICE

    3.1    The Price is comprised as set out in the Schedule and is payable as follows:

    3.1.1  the Deposit as set out in the Schedule to the trust account of the Agent;[58] …

    [58] Cl. 3.1.2 deleted pursuant to Special Condition 7 “Amendments”

    …

    AND

    3.1.3  the balance at Settlement.

    4      SETTLEMENT

    4.1Purchaser to Deliver Signed Documents

    The Purchaser must deliver the following documents, properly executed by the Purchaser, to the Vendor not less than seven (7) days before Settlement Date: -

    4.1.1  a transfer (or other appropriate conveyance) of the Land (“the transfer”)

    4.1.2  any documents supplied by the Vendor to the Purchaser necessary to transfer to the Purchaser title to the Property (other than the Land) (“the assignments”).

    If the Purchaser fails to deliver the transfer, then the Vendor may prepare the transfer at the Purchaser’s expense.  If the Purchaser fails to so deliver the assignments, the Purchaser shall indemnify and does indemnify the Vendor against any liability, accruing after the Settlement Date in respect of the Property (other than the land) until the Vendor’s interest is assigned to the Purchaser.

    4.2     Vendor Must Advise Cheque Details

    The Vendor must notify the Purchaser not less than two (2) days before the Settlement Date the number of, the payee for, and the amount of each bank cheque required to effect Settlement.  If the Vendor fails to do so, the Purchaser may tender the total amount due at Settlement and payable to the Vendor.

    4.3     Place and Time for Settlement

    Settlement must occur at the Lands Titles Registration Office in Adelaide (or other place nominated by the Vendor and agreed by the Purchaser not later than two business days prior to the Settlement Date) on the Settlement Date.

    4.4     Vendor Must Deliver at Settlement

    At Settlement, provided the Purchaser pays to the Vendor all monies payable under this Agreement and otherwise complies with this Agreement, the Vendor must hand to the Purchaser:-

    4.4.1  the transfer signed by the Vendor;

    4.4.2 such documents in stamped and registrable form as may be necessary to give (subject to this Agreement) the Purchaser clear title to the Land;

    4.4.3  the duplicate Certificate of Title;

    4.4.4  the assignments;

    4.4.5 any other document in stamped and registrable form that may be required for the purpose of stamping and registering the transfer.

    4.5     Application of the Deposit

    The Deposit shall be applied towards any commission and expenses due by the Vendor to the Agent in accordance with any Agency Agreement entered into between the Vendor and Agent and in part payment of the Price, unless the Purchaser has defaulted (in which case clause 7 applies) or given notice of intention not to be bound by this Agreement (in which case the Vendor may retain the statutory amount).  In any other case, the Deposit must be refunded to the Purchaser.[59]

    [59]   Clause 4.5 is amended by Special Condition 7 “Amendments to the REISA Contract”.  Clause 7 of the Special Conditions provides: “the following amendments shall be made to the REISA Contract 7.3 Clause 4.5 of REISA Contract Clause 4.5 shall be amended by deleting the following words starting in the first line: “… any commission and expenses due by the Vendor to the Agent in accordance with any Agency Agreement entered into between the Vendor and the Agent and …””.

    6      SPECIAL CONDITIONS

    The party required to comply with a Special Condition must make every reasonable endeavour to do so.  If the Special Condition is not complied with before the date specified in the Special Condition (or if no date is specified, within twenty one (21) days of the date of this Agreement) then,

    …

    6.2if the failure to comply with the condition is due to the neglect or default of the Vendor or the Purchaser, the party not in default may terminate this Agreement.  If the Vendor is in default, the Purchaser may, upon giving seven days’ written notice to the Vendor, terminate the Agreement and all monies paid by or on behalf of the purchaser must be repaid to the Purchaser upon the termination or otherwise clause 7.2 will apply.  If the Purchaser is in default, clause 7.1 will apply.

    7      DEFAULT

    7.1     Purchaser’s Default

    7.1.1 If the Purchaser breaches this Agreement and as a result, the purchase of the property is not completed on the Settlement Date, or the Price or any part of the Price is not paid on its due date, the Purchaser must pay interest on the full Price (less the amount of any deposit monies paid) from the Settlement Date until either:-

    7.1.1.1      the date full payment is made; or

    7.1.1.2the date of termination (whichever first occurs) at the default rate.  Any payment of interest at the default rate is without prejudice to any other legal remedy the Vendor may have by reason of the Purchaser’s default.

    …

    7.1.3  If: -

    7.1.3.1the Purchaser breaches this Agreement prior to or on the Settlement Date; and

    7.1.3.2any such default continues unremedied for a period of not less than three (3) business days the Vendor may at any time after those three (3) business days give notice to complete to the Purchaser.  The notice must: -

    7.1.3.3appoint a time for Settlement (between 10:00am and 3:00pm on a business day); and

    7.1.3.4require the Purchaser to settle at the time appointed in the notice.

    If the Purchaser fails to comply with the terms of the notice, the Vendor may, without prejudice to any other legal rights or remedies the Vendor may have, terminate this Agreement by notice in writing to the Purchaser.  A notice of completion may be given more than once.

    …

    7.1.5  If this Agreement is terminated under the provisions of this clause 7.1:-

    7.1.5.1the Deposit is forfeited to the Vendor except so much as exceeds 10% of the purchase price (which excess, if any, shall be deemed for the purposes of this Clause to be an instalment of the purchase price);

    and

    7.1.5.2      the Vendor may, at the Vendor’s option, either:-

    7.1.5.2aretain the Property and sue the Purchaser for damages for breach of contract; or

    7.1.5.2bresell the Property either by public auction or private contract and if the Vendor re-sells the Property and the re-sale is settled within 12 months following the date of termination the deficiency in price (if any) upon such re-sale together with all charges and expenses of and incidental to the re-sale or attempted re-sale and the Purchaser’s default must immediately after such re-sale be paid by the Purchaser to the Vendor as and by way of liquidated damages (the Purchaser receiving credit for any deposit paid).

    If the Property realises a higher price than was payable under this Agreements the Vendor is entitled to retain that higher price, free of any claim by the Purchaser.  In exercising any rights of resale, it is not necessary for the Vendor first to tender a transfer to the Purchaser.

    7.1.5.3the Vendor shall be entitled to retain for 12 months from the date of termination of the contract and pending re-sale of the property all instalments of purchase price paid.

    7.1.5.4      if the Vendor resells the property the Vendor may:-

    a.if settlement of such resale is within 12 months after the date of termination of the contract, apply any instalments of purchase price paid in or towards satisfaction of any damages mentioned in clause 7.1.5.2b; and

    b.     retain absolutely:-

    (i)any surplus arising from such resale in excess of the original purchase price and expenses arising from the re-sale and all losses and expenses incurred by the Vendor resulting from the Purchaser’s default; and

    (ii)any interest paid by the Purchaser;

    7.1.5.5if the Vendor does not commence proceedings for the recovery of damages or fails to re-sell the property within the 12 month period referred to in Condition 7.1.5.2b, then after the said period of 12 months has expired, the Vendor shall account to the Purchaser for all instalments of purchase price received by the Vendor (other than for any deposit forfeited to the Vendor in the terms of the contract) without interest.

    7.2     Vendor’s Default

    7.2.1 If the Vendor breaches this Agreement prior to or on the Settlement Date, the Purchaser may without prejudice to any other legal rights or remedies the Purchaser may have, at any time after the occurrence of such breach, give to the Vendor notice in writing requiring such breach to be remedied within the period specified in the notice being not less than three (3) business days after serving of the notice.

    7.2.2  Unless the breach is remedied within that period, the Purchaser may:-

    7.2.2.1treat this agreement as being terminated at the end of that period; or

    7.2.2.2postpone the Settlement Date until after the breach is rectified and notified to the Purchaser and claim from the Vendor (in which case the Vendor must pay to the purchaser);

    7.2.2.2ainterest at the default rate on the full Price from and after the Settlement Date to and including the date when such breach ceases and is notified to the Purchaser; or

    7.2.2.2bthe amount of the actual damage suffered by the Purchaser (whichever is the greater amount, at the Purchaser’s discretion)

    7.2.3 If this Agreement is terminated under the provisions of this clause 7.2 all monies paid by the Purchaser must be refunded to the Purchaser.

    7.2.4 If the Settlement Date is postponed pursuant to the terms of this clause, all rates and taxes (but not income) shall be re-adjusted to midnight on the day before settlement takes place.

    7.3     Time of the Essence

    Time is of the essence in respect of any obligation under clause 7.

    …

    8     MISCELLANEOUS

    …

    8.2     No Merger

    The provisions of this Agreement shall not merge on completion of this Agreement and shall survive Settlement and any termination of this Agreement by either the Vendor or the Purchaser.

    …

    8.8     Goods and Services Tax

    The Vendor and the Purchaser acknowledge and agree that:

    8.8.1if GST applies to any supply made under or in connection with this Agreement by the Vendor:

    8.8.1.1the amount payable in respect of the supply is exclusive of GST; and

    8.8.1.2the Vendor may, in addition to any amount or consideration expressed as payable in respect of the supply, recover from the Purchaser an additional amount on account of GST; and

    8.8.1.3the Purchaser shall pay to or reimburse to the Vendor or to a third party (as the case may be), any additional amount on account of any GST that is or was incurred, paid or payable by the Vendor in respect of that supply; and

    8.8.1.4the amount payable by the Purchaser to the Vendor or to a third party in respect of that supply shall be increased by the product of:

    (a)the rate at which GST is imposed at that time; and

    (b)the amount or consideration payable for the relevant supply; and

    8.8.1.5the Purchaser shall pay any additional amount on account of GST at the same time as the payment for the relevant supply is payable or at such other time as the Vendor directs.

    8.8.2  The Purchaser acknowledges and agrees that if GST applies to any supply made under or in connection with this Agreement by the Purchaser, that the Purchaser shall be responsible for the payment of any additional amount on account of any GST in respect of that supply.

    8.8.3  The Purchaser warrants that the Property shall be used by the Purchaser predominantly for residential accommodation within the meaning of the GST Law.  Delete for vacant land and see “GST Annexure”.

    8.8.4  This clause 8.8 shall not merge on completion of this Agreement and shall survive settlement and any termination of this Agreement by either the Vendor or the Purchaser.

    …

    8.10   Other Conditions

    The other terms and conditions set out in the Schedule Other Conditions form part of this Agreement.

    …

    RESIDENTIAL CONTRACT

    Schedule

    …

    H     The Price (Clause 1.17)

    Three Million Dollars     $3,000,000.00

    GST (if applicable)  $   300,000.00

    Total  $3,300,000.00

    …

    J      Settlement Date (Clause 1.22)

    Refer Annexure A Special Conditions attached

    …

    S      Other Conditions (clause 8.10)

    Annexure A – Special Conditions

    …

    ANNEXURE A

    SPECIAL CONDITIONS

    1      Interpretation

    …

    1.3Should there be any inconsistency between these Special Conditions and the Standard Terms and Conditions, then these Special Conditions shall prevail.

    …

    2      Settlement

    Settlement of this Agreement shall take place on 31 day of December 2008, provided however the Purchaser may bring settlement forward to an earlier date by giving the Vendor at least 28 days prior written notice of the earlier date so nominated by the Purchaser … not before 1 June 2008[60]

    [60]   The italicised part of this clause comprises a handwritten addition initialled by both parties.

    3      Deposit

    3.1The Purchaser shall pay the Deposit as set out in the Schedule preceding these Special Conditions by way of cash or Bank Cheque into the trust account of the Vendor’s Solicitor.

    3.2The Deposit shall be invested in the name of the Vendor’s Solicitor in an interest bearing deposit account at a Bank nominated by the Vendor’s Solicitor.

    3.3All interest which accrues on the investment of the Deposit less any taxes, bank charges and other expenses (“net interest”) accrues for the Vendor’s benefit and is payable to the Vendor at Settlement or on default by the Purchaser in accordance with Clause 7.1, except if this Agreement is terminated by reason of the Vendor’s breach in which case the net interest will be paid to the Purchaser solely.

    3.4The Vendor’s Solicitor may withdraw the Deposit (with accrued net interest) at any time during the period of 3 Business Days immediately preceding the Settlement Date and forthwith pay such money into their trust account in readiness for Settlement.

    3.5The Vendor’s Solicitor shall hold and deal with the Deposit in accordance with the terms of this Agreement provided that each party authorises and directs the Vendor’s Solicitor to invest and deal with the Deposit and net interest in the manner specified above and will do all other things necessary to give full effect to the provisions of this Special Condition.

    4      Undertakings

    4.1     Until settlement has occurred under this Agreement, the Purchaser undertakes:

    4.1.1 not to take any steps to physically demolish the building located at 3 College Street, Glenelg (“3 College Street”);

    4.1.2  not to do anything that interferes with the Vendor’s use of the Land; and

    4.1.3  to maintain 3 College Street in good repair and condition.

    4.2     The Vendor:

    4.2.1 acknowledges that as part of the Purchaser’s future development intentions for the Land and 3 College Street, it will be necessary for the Purchaser (or a related entity) to seek and obtain provisional development plan consent to demolish the building on the Land and the building on 3 College Street; and

    4.2.2 agrees that the Purchaser shall not be in breach of the provisions of Special Condition clause 4.1 above by virtue of seeking and obtaining such provisional development plan consent.

    4.3The Purchaser agrees that should it, its contractors, consultants or related entities breach any of the provisions of clause 4.1 above, the Vendor may in addition to any other right or remedy apply to the Supreme Court for an injunction to restrain the Purchaser its contractors consultants and/or related entities from any such demolition works or to prevent any such interference or to enforce its obligation to undertake such maintenance and repair.

    5      GST

    5.1     The Vendor and the Purchaser acknowledge and agree that:

    5.1.1 the Price payable under this Agreement is exclusive of GST; and

    5.1.2 the Vendor may, in addition to the price but subject to providing the Purchaser with a tax invoice (as required by the GST Legislation), recover from the Purchaser an additional amount on account of GST, such additional amount to be calculated in accordance with the GST Law and paid at the time of payment of the Price.

    5.2     Without limiting the generality of Clause 5.1:

    5.2.1 the price does not include GST; and

    5.2.2 the amount payable to the Vendor under this Agreement will be the sum of the Price and any GST payable or reimbursable by the Purchaser in respect of the Land.

    5.3Without limiting or negating any of the Vendor’s obligations under the GST Law, the Vendor shall deliver to the Purchaser at the time that the Purchaser pays the Price a tax invoice for the taxable supply made by the Vendor to the Purchaser under or pursuant to this Agreement;

    5.4     In this clause 5:

    5.4.1 any expression used that is also used in the GST Law shall have, for the purposes of this Agreement, the meaning used in or attributed to that expression by the GST Law from time to time;

    5.4.2 ‘recipient’ means a person who acquires or receives or is entitled to acquire or receive a taxable supply under this Agreement; and

    5.4.3 ‘supplier’ means a person who supplies or is required to supply a taxable supply under this Agreement.

    …

    7      Amendments to the REISA Contract

    …

    [A number of amendments are listed but are not here reproduced. Amendments relating to the terms reproduced above have been incorporated]