Catchwords: FAMILY LAW – Application for stay of operation of orders pending appeal – where applicant had sought ex parte injunction to prevent respondent in her capacity as director of company, executing contract for sale of land – where substantive basis of application was that he did not want property sold until discovery complete – where it was accepted that the respondent had legal entitlement to execute contract – where submission made that the position was analogous to that of a party who sought to prevent sale on basis that order conferring right to purchase the property would be sought at trial – where such relief not sought in relation to this property in initiating application – where respondent proposes to retain net proceeds of sale in controlled monies account – where no case advanced that the respondent was acting in breach of directors duties – where applicant disavows that the company is trustee of trust – where no claim that respondent acting oppressively as shareholder – where no claim or evidence that the respondent wasting or dissipating assets – where no other serious question to be tried – where balance of convenience did not favour grant of relief – where application refused and respondent permitted to enter contract of sale – stay pending appeal – applicable principles – relevant considerations – whether appeal would be rendered nugatory – whether proposed grounds of appeal are of merit – discretionary considerations – where applicant offers undertakings – where applicant undertakes to pursue appeal with all due diligence – whether application bona fide – whether likelihood of appeal being heard in near future or being expedited – application granted upon undertakings.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
SALTZER & PACEK (No.3) [2020] FCCA 1381
Case
[2020] FCCA 1381
Decision Date
CaseChat Overview and Summary
The applicant, Mr. Saltzer, sought a stay of orders pending an appeal, specifically to prevent the respondent, Ms. Pacek, in her capacity as director of a company, from executing a contract for the sale of land. The substantive basis for the application was Mr. Saltzer's desire to delay the sale until discovery was complete, despite acknowledging Ms. Pacek's legal entitlement to enter into the contract. The matter came before A. Kelly J.
The court was required to determine whether to grant a stay of the orders permitting the sale of the land pending the outcome of Mr. Saltzer's appeal. This involved considering the applicable principles for granting a stay, including whether the appeal would be rendered nugatory, the merit of the proposed grounds of appeal, and discretionary considerations such as the bona fides of the applicant and the likelihood of the appeal being heard expeditiously.
A. Kelly J reasoned that the applicant had not established a serious question to be tried, nor did the balance of convenience favour the grant of a stay. The court noted that no case had been advanced that Ms. Pacek was acting in breach of her directors' duties, that the company was a trustee, that Ms. Pacek was acting oppressively as a shareholder, or that assets were being wasted or dissipated. While the respondent proposed to retain the net proceeds of sale in a controlled monies account, this did not outweigh the lack of a serious question to be tried. However, the court ultimately granted the application for a stay pending appeal, conditional upon Mr. Saltzer providing undertakings to pursue the appeal with all due diligence and that the application was bona fide.