Yuruga Nursery P/L v Australian Tea Tree Management Ltd

[2000] QCA 376

[2000] QCA 376

COURT OF APPEAL

THOMAS JA

Appeal No 7869 of 2000

YURUGA NURSERY PTY LTD
(ACN 010 827 595)  Respondent
  (Plaintiff)

and 

AUSTRALIAN TEA TREE
MANAGEMENT LIMITED  Not party to appeal
  (First Defendant)

CLARENCE JAMES STEVENS  First Appellant
  (Second Defendant)

IAN PHILIP JEFFERSON WASS                  Second Appellant
  (Third Defendant)

BRISBANE

..DATE 13/09/2000

JUDGMENT

HIS HONOUR:  This is an application to stay a judgment pronounced by Justice Jones in Cairns.

His Honour set aside a default judgment that had been obtained against the defendants as guarantors.  However, his Honour set aside only part of the judgment and allowed to remain a judgment in the sum of $177,140.00 in respect of plants that had been already delivered to the company whose obligations the guarantors were guaranteeing.

It is common ground that that sum incorrectly includes a sum of $4,650.00 which was not claimed against the guarantors, so some adjustment would be necessary ex debito justitiae. 

However, more broadly it seems to me that the appropriate way to hold matters between the parties pending the determination of the appeal should require some payment to be made by the guarantors as a sign of their good faith in pursuing the litigation, and perhaps to reflect what seems to have been his Honour's reservations in relation to the defence that has been suggested.  Even so, Mr Gotterson rightly points out that there would be a right to set off the damages that might be shown to have been suffered in respect of the wet root problems and delays for which the other party are said to be responsible.

No material was filed on behalf of the respondent on the present application and I have no satisfactory material in relation to the creditworthiness of the litigants.

In my view the appropriate order should be that a stay be granted upon the payment into Court, or into a trust account agreed between the parties, of the sum of $80,000 until the determination of the appeal.

In relation to directions as to the further conduct of the proceedings, there is merit in Mr Gotterson's submission that further pleadings in respect of the termination of the contract will very likely be affected by what is decided in the appeal in relation to issues that are raised, and that there would be a likely wastage of costs and effort if further proceedings occurred in relation to the balance of the action.

I am therefore prepared to order in substance in terms of paragraph 3 of the amended application.  I think it best that the parties be given the opportunity to present a draft which incorporates that direction and any other directions they think appropriate.

The costs of today should be, I think, each parties cost in the appeal.

...

HIS HONOUR:   I will simply order as per draft to be submitted and initialled by counsel. 

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