Turner v Newport Quays Stage 2A Pty Ltd and MC Marina South Ltd (No 3)

[2009] SADC 141

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

TURNER v NEWPORT QUAYS STAGE 2A PTY LTD AND MC MARINA SOUTH LTD (No 3)

[2009] SADC 141

Reasons for Decision of His Honour Judge Tilmouth

2 October 2009

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

Application by unsuccessful party for stay pending appeal granted on the grounds they might otherwise be shut out of contractual rights should the appeal succeed.

District Court Civil Rules 2006 6DCR 300(1) & (2); Supreme Court Rules 6SCR 300; Landmark Operations Ltd v J Tiver Nominees Pty Ltd [2009] SASC 14, referred to.

TURNER v NEWPORT QUAYS STAGE 2A PTY LTD AND MC MARINA SOUTH LTD (No 3)
[2009] SADC 141

Application for stay pending appeal

1. Judgment was delivered in relation to these proceedings on 25 September 2009, when the court indicated it was minded to make orders in the nature of recision pursuant to s 87 of the Trade Practices Act.[1] Final orders of that kind were duly entered on 30 September 2009, when the defendants indicated they would appeal and sought a stay.

   [1] Turner v Newport Quays Pty Ltd & MC Marina South Pty Ltd, [2009] SADC 142

   The power to grant stays

2. Rule 6DCR 300 of the District Court Civil Rules 2006 provides:

   [6DCR 300]       Stay of execution

   300(1)     An appeal does not operate to stay execution of or proceedings on the judgment subject to the appeal nor does it invalidate proceedings that have already been taken on the judgment.

   (2)     The Court may, however, order a stay of execution of, or proceedings on, a judgment because it is subject to appeal, or for any other proper reason.

3. For some anomalous reason this is cast in slightly different terms to the equivalent rule in the Supreme Court Rules, in as much as 6SCR 300 does not contain the words “because it is subject to appeal” found in 6DCR 300(2).  This suggests an intention that appeals against judgments from the District Court, furnishes in itself a reason to grant stays, whereas it does not in the case of Supreme Court appeals.  However that consideration is irrelevant to the present case because an appeal has not yet been instituted.

4. The principles governing the granting of stays pending appeal were discussed recently by Sulan J in Landmark Operations Ltd v J Tiver Nominees Pty Ltd.[2]  As his Honour extensively reviewed that authorities, it is sufficient to summarise his conclusions:

   ·a stay is not normally granted pending appeal;[3]

   ·the party moving bears an onus of satisfying the court it should be granted, an onus not discharged lightly;[4]

   ·making an order for a stay should be one that is justified by the justice of the case for identifiable reasons.[5]

   [2] [2009] SASC 14

   [3]    Above at [24]

   [4]    Above at [27]

   [5]    Above at [28]

   Consideration of the merits

5. In this instance there is no reason to suppose a stay is necessary in order to protect the defendants ability to enforce judgment, in fact the position is quite the reverse.  Rather the defendants maintain there are proper grounds for granting a stay in order to preserve their contractual rights and remedies, should their appeals succeed.  It is to be recalled the defendants gave notice of termination under both contracts on 23 December 2008, on the footing that the plaintiff fell into breach by reason of his refusal to settle.  Had the contract remained on foot and in the event of purchaser default, the agreement is terminated by virtue of clause 7.1.5.1, the deposit is forfeited to the vendor, who may then at its option, either retain the property and sue for damages, or alternatively resell the property (under specified conditions), when the purchaser is required to pay the vendor any deficiency in the price so obtained.

6. In short then, it is the defendants position that if a stay is not granted, they may forfeit or compromise these contractual rights and options.  On the other hand if the stay is not granted, as the contract is now declared void ab initio, they may be kept out of their contractual rights permanently, even if the contracts are later reinstated.  It seems to me that this furnishes sufficient reason for granting a stay.  It is not suggested imposing a stay is of any particular disadvantage to the plaintiff.  On the other hand refusing a stay might conceivably, irrecoverably shut the defendants out of their contractual remedies.

7. Accordingly on the defendants undertaking to institute promptly and prosecute appeals to the Full Court of the Supreme Court of South Australia diligently, there will be an order under 6DCR 300(2) staying the execution of the judgment entered in this court on 30 September 2009.  The parties have liberty to apply on short notice.  The question of costs is reserved.