Technilock (Aust) Pty Ltd v Mondami Pty Ltd - [1999] SASC 94

TECHNILOCK (AUSTRALIA) PTY LTD & ORS v MONDAMI PTY LTD
[1999] SASC 94

WICKS J This is an application for an order that proceedings on the judgment of Millhouse J delivered on 2 February 1999 be stayed pending the determination of an appeal against the judgment to the Full Court. By the judgment in question, the Court ordered that certain sums totalling in excess of $860,000 be recovered from the defendants.
On 5 March 1999 I ordered a stay of proceedings until further order and adjourned the application for argument to Monday 8 March 1999.
As a condition of making the order, Mr John Bacchiaz and Mrs Georgia Bacchiaz undertook to the Court that they would not sell, transfer, charge or otherwise encumber the property known and described as Queensland Title Reference No 13221034 being 96 Haven Road, Pullenvale, Queensland until released from the undertaking by the Court.
The Court has an inherent power to grant a stay in circumstances such as the present: Dwyer v National Companies and Securities Commission (No 2) (1988) 15 NSWLR 285 at p287.
One begins with a presumption that the judgment entered is correct. Under the older authorities, it was necessary to show a feature which was “exceptional” or “special”. That is no longer required. In considering the question of a stay, the Court has a broadly based general discretion: Duke Group Limited (In Liquidation) v Pilmer & Ors (No 9) per Mullighan J, Jt No S6716, 15 June 1998, unreported. In that case, Mullighan J observed:
"The onus is upon the applicant to demonstrate a proper basis for a stay which will be fair to all parties. The mere filing of the appeal is insufficient. The discretion to be exercised by the Court includes the terms upon which the stay would be fair. The Court must weigh considerations such as the balance of convenience and the competing rights of the parties before it ..."

I have considered the case to be argued by the defendants on appeal. This seems to me to be the starting point. In my view the case is arguable but I would not regard it as a strong case. However, in the exercise of a general discretion, I would take this matter into account along with other factors relevant to the discretion which I am asked to exercise. If I had found the case not to be arguable, the proper course would have been to refuse the stay.
In an affidavit sworn on 20 February 1997 to which I was referred during argument, the second defendant said that goods were supplied from Italy and the United States of America in connection with his business and that his house property at Pullenvale was continually used for letter of credit facilities required by the first defendant from time to time. It was also used as security for a guarantee to the National Australia Bank in respect of obligations undertaken from by the first defendant.
I have considered the matters raised by…

Grounds of appeal

[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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Details

Case: [1999] SASC 94
Decision Date: 11 March 1999

CaseChat Overview and Summary

Technilock (Aust) Pty Ltd and others sought an order that proceedings on a judgment delivered by Millhouse J on 2 February 1999 be stayed pending the determination of an appeal against the judgment to the Full Court. The judgment ordered that certain sums totalling over $860,000 be recovered from the defendants. On 5 March 1999, Wicks J ordered a stay of proceedings until further order and adjourned the application for argument to 8 March 1999. As a condition of the stay, the defendants undertook not to sell, transfer, charge or otherwise encumber the property at 96 Haven Road, Pullenvale, Queensland until released by the Court.

The primary legal issue was whether the Court should grant a stay of proceedings pending the determination of an appeal against the judgment. The Court had an inherent power to grant such a stay, and exercised a broadly-based general discretion in deciding whether to do so. In considering the question of a stay, the Court had to weigh the balance of convenience and competing rights of the parties. The applicant had to demonstrate a proper basis for a stay which was fair to all parties. The mere filing of the appeal was insufficient.

The Court considered the arguability of the appeal and other factors relevant to the exercise of its discretion. The Court found the appeal to be arguable but not strong. However, the Court granted the stay in the exercise of its general discretion, subject to conditions. The Court imposed conditions to ensure the property was available as security and that the security was more than a mere personal assurance. The Court ordered that the defendants execute and register a mortgage over the property to secure the judgment sum, interest and costs, payable in accordance with the judgment on appeal. The mortgage would be stamped in Queensland as security for an appropriate sum. The Court left matters of detail to be dealt with on a subsequent application.

The Court granted the stay of proceedings pending the determination of the appeal, subject to the imposition of conditions to secure the judgment sum, interest and costs. The stay was to continue until the appeal was disposed of or discontinued, abandoned or dismissed. The Court would hear counsel on the further progress of the matter and the question of costs.

Orders