Victoria Avenue Nominees Limited v Aras (RLD)

[2003] NSWADTAP 15

Appeal Panel - Internal

CITATION:	Victoria Avenue Nominees Limited -v- Aras (RLD) [2003] NSWADTAP 15
PARTIES:	APPELLANT Victoria Avenue Nominees Limited RESPONDENT Umrancan Aras
FILE NUMBER:	039016
HEARING DATES:	17/04/2003
SUBMISSIONS CLOSED:	04/17/2003
DATE OF DECISION:	04/17/2003
DECISION UNDER APPEAL:	Aras v Victoria Avenue Nomineesd Limited (2003) NSW ADT 50
BEFORE:	O'Connor K - DCJ (President); Donald BG - Judicial Member; Fairweather R - Member
CATCHWORDS:	interim order
MATTER FOR DECISION:	Preliminary matter
FILE NUMBER UNDER APPEAL:	015093
DATE OF DECISION UNDER APPEAL:	03/12/2003
LEGISLATION CITED:	Retail Leases Act 1994
CASES CITED:	Director General, Department of Transport v Z (GD) [2002] NSWADTAP 17 Re Middle Harbour Investments Ltd (in liq) (CA(NSW), 15 December 1976, unreported)
REPRESENTATION:	APPELLANT J R Clarke, barrister RESPONDENT G Carolan, barrister
ORDERS:	1. Application refused.; 2. Costs reserved.

EX TEMPORE REASONS

1 HIS HONOUR: The application is made by the appellant essentially to stay an order for damages that has been made at the first instance level of the Tribunal, pending the outcome of an appeal.

2 The question of what principles ought to be applied in the exercise of the discretion by the Appeal Panel has been the subject of discussion today.

Principles

3 Attention has been drawn by the appellant to a statement I made on behalf of the Appeal Panel in a case arising out of the General Division of the Tribunal, Director General, Department of Transport v Z (GD) [2002] NSWADTAP 17 (the Transport case), where I said that:

‘The usual approach is to ask whether there are reasonably arguable grounds as to there being errors of law identified in the notice of appeal and by the submissions on the stay application; and then, having formed a view on that matter, also to look at any issues of actual prejudice to the respondent to the appeal if the stay is granted.’
4 That expression of view is different to the expression of view that Mr Carolan has drawn my attention to, which is by Mahoney JA in Re Middle Harbour Investments Ltd (in liq) (CA(NSW), 15 December 1976, unreported). The text given in Ritchie's Supreme Court Procedure [13,002] is:
‘Where an application is made for a stay of proceedings, it is necessary that the applicant demonstrate an appropriate case. Prima facie a successful party is entitled to the benefit of the judgment obtained by him and is entitled to commence with the presumption that the judgment is correct. These are not matters of rigid principle and a court asked to grant a stay will consider each case upon its merits, but where an applicant for a stay has not demonstrated an appropriate case but has left the situation in the state of speculation or of mere argument, weight must be given to the fact that the judgment below has been in favour of the other party.

In some cases, it will be apparent that, unless a stay is granted, a successful appeal will be rendered nugatory.’

5 I will not read on, but the last point is reasonably obvious in situations where you are talking about conduct orders and things of that sort.

6 The view that I expressed in the Transport case involved a situation where a licensed bus driver, who had been the subject of a cancellation, had a history of serious sex offences. He convinced the Tribunal at first instance that he should have his licence restored on a restricted basis to drive certain kinds of buses. The Department sought a stay of the Tribunal decision from the Appeal Panel pending determination of the appeal. That really forms the background to the dictum of mine quoted above. The bus driver had at that point already been off the road for two years (as the matter had bounced back and forth between various levels of the Tribunal).

7 What we have got here today is a context which is different; that is, a situation where there has been an award of damages in civil proceedings. These are not administrative law proceedings of the kind that arose in the Transport case. As I understand the statement of Mahoney JA, it is made in the context of what I would call proceedings of the usual kind (ordinary civil proceedings, not ones involving public interest considerations of the kind that may also be relevant to the continued operation of government decisions.)

8 The difficulty we have got, I think, with the material that you have put on so far, Mr Clarke, is that it does not really point to any real likelihood that the successful plaintiff at first instance, now the respondent to your client’s appeal, would conduct himself in the way that might place at risk the possibility of you recovering any amount that you paid over in response to the award of damages.

Assessment

9 As best we can tell from the limited material that is before us, these were people (the lessee and his wife) who were accepted into a major shopping centre. They traded there for a time. Obviously a bitter dispute now exists between the parties. The respondent continues to trade, it appears, satisfactorily elsewhere, though we have got no more evidence than what Mr Carolan has had to say on that.

10 And the evidence that you put before us, Mr Clarke, does show that the respondent and his wife have assets within the jurisdiction that one would have thought could not easily be disposed of. They are subject to regular mortgages and one property is leased to a government agency. So it seems to me that the respondent and his wife are not in a position to take their assets out of the jurisdiction easily. Unless there have been great failures in the world of property investment in Sydney, there should be equity enough to cover any claim that you might have later in the event that you are successful on appeal.

11 So for those reasons it is our view that at this stage the application that you have made is not sufficiently made out. The words Mahoney JA uses here is that it is not enough really to be left in a ‘state of speculation or mere argument’ as to the appellant/defendant’s case. I regret to say to you, Mr Clarke, that at this point I think your application really does not go any further than that.

12 There is obviously some concern about having to pay any damages at this stage on the part of your client. It really has not been brought to a level of specificity that would, I think, entitle us to interfere with the order. We have given consideration to the question of whether we should protect some part of the amount pending resolution of the appeal to cover the costs award that was made in your favour as to an interlocutory matter, but the amount affected by the award would appear on its face to be a relatively small amount on the basis of reading the terms of the award and what we have been told from the Bar Table today. Our view is that it is not necessary on this occasion to make any special provision for that. So our decision is the application is refused.

13 HIS HONOUR: We will reserve costs.