Practice and procedure - Application for stay of execution pending appeal - Tests for determination - Dispute between parties to two contracts for sale of land - No new matter of principle involved

Land Title Act 1994 (Qld), s 184(3)(b), s 185(1)(a)

Rules of the Supreme Court 1971 (WA), O 47 r 13(1)(a), O 63 r 10, O 63 r 15(1)(a)

Supreme Court Act 1935 (WA), s 58(1)(a), s 59(4)

Transfer of Land Act 1893 (WA), s 68(1), s 134

Third Respondent : Mr M J Buss QC & Ms K M Davidson

Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) (1983) 2 Qd R 255

LHK Nominees Pty Ltd v Kenworthy [2002] WASCA 291; (2002) 26 WAR 517

White v Tomasel [2004] QCA 89

Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685

Assets Co Ltd v Mere Roihi [1905] AC 176

Cox v Simeon, unreported; FCt SCt of WA; Library No 5063; 7 September 1983

Croney v Nand [1998] QCA 367; [1999] 2 Qd R 342

Dawson v Westpac Banking Corp [1991] HCA 52; (1991) 104 ALR 295

Devries v Australian National Railways Commission (1993) 177 CLR 472

Halge v George [2004] WASCA 141

Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79

Jennings Constructions Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; (1986) 161 CLR 681

Milchas Investments Pty Ltd v Larkin, unreported; SCt of NSW; BC8902077

Paal Wilson & Co A/S v Partenreederei Hannah Blumenthal [1983] 1 All ER 34

Thompson v Palmer [1933] HCA 61; (1933) 49 CLR 507

Uranerz (Aust) Pty Ltd v Hale (1980) 30 ALR 193

1 MURRAY ACJ: This was an application for a stay of execution upon a judgment pending the determination of an appeal. When the matter was heard, the appeal had been granted expedition. Since our decision upon the application the appeal has been abandoned and dismissed.

2 It is necessary to refer only briefly to the facts out of which the application arose. What follows is taken from the affidavits filed in support of and against the application.

3 The second respondent, Mr Arbuckle, in 2002 bought a business operated by the Swan Valley Cheese Company. He borrowed substantial moneys to make the acquisition. Shortly after he acquired the business it was found to be in poor financial circumstances and further borrowings were made by the company. The debt load soon rose to something over $1M. Mr Arbuckle decided that the family home in which he and his wife lived in Nedlands, should be sold and the net proceeds of sale devoted to reducing the debt load associated with his business. His plan was to refinance whatever debt remained in the hope that the cost of servicing that ongoing commitment would be much reduced, thereby enabling the company to have a better capacity to trade out of its financial difficulties for the benefit of its proprietors and creditors.

4 The house was put on the market in 2003. The third respondent was commissioned as agent for the sale. It acted throughout by its principal, Mr Rossen.

5 By a form of offer and acceptance dated 21 December 2003 the appellant, Mrs Ardrey, offered to purchase and Mr Arbuckle agreed to sell the property for the sum of $865,000. The contract was conditional upon finance being approved by 24 December 2003. Finance was not approved by that date and the parties agreed to an extension of time for that purpose to 13 January 2004, but again, by that date, approval of finance had not been obtained by Mrs Ardrey. There were a number of telephone conversations, particularly between Mrs Ardrey and Mr Rossen, between 12 and 16 January 2004. What was said on either side is mutually disputed. The resolution of that factual contest was significant in the proceedings at first instance.

6 In the event, Mr Rossen and, crucially, Mr Arbuckle, took the view that the contract made with Mrs Ardrey had been terminated. Because he was, having regard to his financial circumstances and those of the company operating his business, keen to pursue his plan involving the sale of the house in Nedlands, Mr Arbuckle again put it on the market and Mr Rossen advertised it, in the process, as I understand it, reducing the asking price from the $875,000 originally sought to $850,000, $15,000 less than the purchase price agreed with Mrs Ardrey. Meanwhile, there were further telephone conversations between Mr Rossen and Mrs Ardrey in relation to her desire to pursue the purchase of the property.

7 On 24 January 2004, again by offer and acceptance, the first respondents, Mr and Mrs Bartlett, entered into an unconditional contract to purchase the property for $850,000. A deposit of $85,000 was paid on 27 January 2004 and settlement was due on or before 9 March 2004. Also on 27 January 2004, Mrs Ardrey's husband, Dr Ardrey, spoke with Rossen and proposed that the Ardreys purchase the property from the Bartletts for $950,000, $100,000 more than they had paid for it.

8 Nothing came of that and in February both Mrs Ardrey and the Bartletts lodged caveats to prevent any dealing in the property.

9 It was abundantly clear that both the Bartletts and Mrs Ardrey maintained their interest in acquiring the property. Both have paid stamp duty on the respective transactions. The Bartletts moved into rented accommodation in the neighbourhood. Mrs Ardrey offered to purchase the property from the bank to which Mr Arbuckle mortgaged it to raise finance for his business, should there be a mortgagee's sale. She offered to purchase it for $901,000.

10 The Bartletts sued Mr Arbuckle for specific performance of their contract made on 24 January 2004. In the alternative, they claimed damages for breach of that contract. They claimed an order against Mrs Ardrey for the removal of her caveat on the ground that the first contract was terminated when she was unable to obtain finance by 13 January 2004, or alternatively by agreement made when she requested and received the return of her deposit of $30,000 on 30 January 2004 and in the course of the disputed conversations between Mrs Ardrey and Mr Rossen, the agent. Against Mr Rossen, the Bartletts claimed that if the contract for the sale of the property to Mrs Ardrey remained on foot, he was liable in damages under the Trade Practices Act 1974 (Cth) for misleading and deceptive conduct as Mr Arbuckle's agent, in offering the property for sale and in negotiating the acceptance of their offer to purchase it.

11 The action was tried in the expedited list before Commissioner Odes QC. It was heard over 7 days in June 2004. The learned Commissioner remarked on the voluminous pleadings, with papers for the Judge running into 107 pages. Apart from the claims to which I have referred there were, of course, a number of defences, counterclaims and interlocking claims for contribution or indemnity. In the circumstances, perhaps there may have been good grounds for concluding that as the action developed it ceased to be a matter suitable for disposition in the expedited list. But however that may be, the learned Commissioner gave judgment in the action extremely promptly, on 6 August 2004.

12 The judgment turned essentially upon the Commissioner's views of the credibility of Mrs Ardrey and also of Mr Rossen. He gave judgment for the Bartletts upon their claim against Mr Arbuckle and, in relation to the caveat, against Mrs Ardrey. It follows that the claim against Mr Rossen was dismissed. Mrs Ardrey's counterclaim for the specific performance of the contract made with her and for the removal of the Bartletts' caveat was dismissed. Specifically, Mrs Ardrey was ordered to remove her caveat within 14 days. Within 14 days thereafter Mr Arbuckle was ordered to specifically perform and carry into execution the contract of sale dated 24 January 2004 made between him and the Bartletts. Interestingly, Mr Arbuckle was ordered to pay the Bartletts $15,000 damages for physical inconvenience, discomfort and mental distress, their out of pocket expenses and interest on those expenses.

13 A week later, on 13 August, an appeal was instituted. The substantive orders sought on the determination of the appeal mirrored those obtained by the Bartletts at first instance. Orders were sought that the Bartletts remove their caveat over the land and that Mr Arbuckle specifically perform the first contract of sale made on 21 December 2003 between him and Mrs Ardrey for the purchase of the land. An order was sought that the Bartletts' claim against Mrs Ardrey in relation to her caveat should be dismissed with costs.

14 Mrs Ardrey's application for a stay of the judgment obtained at first instance pending the hearing and determination of the appeal was made on 13 August when the appeal was instituted. Again, it was heard promptly by Pullin J, and his Honour dismissed the application on 27 August. It was renewed before the Full Court by motion dated 31 August.

15 The Full Court was told that unless the application for a stay was granted it was distinctly possible that final settlement of the contract of sale of the land by Mr Arbuckle to the Bartletts would take place on the very day of the hearing. As it happened, the Court was able to make final orders dismissing the application with costs. We undertook to give reasons for that decision later and these are my reasons for joining in the orders so made.

16 It is unnecessary, I think that I discuss the matters sought to be ventilated by the grounds of appeal against the Commissioner's decision. They were substantially concerned with alleged errors of fact. A number of them involved the contention that the Commissioner erred in preferring the evidence of Mr Rossen to that of Mrs Ardrey. Errors of law were also asserted, but the need to deal with them at length would very much depend upon the view taken by the Full Court of the errors of fact for which the appellant, Mrs Ardrey, contends.

17 The determination of the appeal would require of the Full Court the sort of review of the evidence and the Commissioner's conclusions of fact discussed by the High Court most recently in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118. The difficulty of the task which lay before the appellant was, of course, compounded by the circumstance that there was a substantial element of evaluation of the credibility of witnesses underpinning the Commissioner's decision. Appreciating that to be the case, in his judgment Pullin J remarked upon the difficulty of assessing the prospects of success in the appeal but, his Honour observed, the appellant was likely to have "an uphill battle". Nonetheless, his Honour considered the appeal to be "arguable" and he did not conclude that it had been instituted simply to delay execution. Having heard the arguments of counsel for Mrs Ardrey, Mr Arbuckle and the third respondent, it is sufficient for me to say that I saw no reason to qualify or dissent from the view of the appeal taken by Pullin J.

18 I turn then to my reasons in respect of the refusal of the stay. The application heard by Pullin J was made under the Rules of the Supreme Court 1971 (WA), O 63 r 15(1)(a) which provides:

"Except so far as the Full Court or a Judge may direct, an appeal shall not operate as a stay of execution or of proceedings under the decision of the court below."

19 A number of things may be said of this provision. The power of the Court to grant the stay is discretionary, but it is a power to grant and the general thrust of the rule makes it clear that the party successful at first instance is generally to have the benefit of the judgment pending the determination of the appeal.

20 So much is also made clear by O 47 r 13(1)(a). That is the rule which provides the affirmative power to grant the stay for such period and on such terms as the Court thinks fit upon the application of the party liable to execution under the judgment. So far as the rule is material to a case such as this, it provides the discretionary power to grant a stay of execution if the Court is satisfied, "that by reason of special circumstances it is inexpedient to enforce the judgment or order". In addition, it is accepted that the Court retains an inherent power in procedural matters and so it may be the case that the test for the grant of a stay may be formulated by the Court as well as derived from the Rules.

21 In Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308, Parker J and I reviewed relevant authorities before, at 311[9], endeavouring to state the generally applicable principles governing the grant of this exceptional remedy:

"In the light of the authorities, we may attempt to distil what we take to be the generally applicable relevant principles -

• The successful litigant at first instance will ordinarily be entitled to enforce the judgment pending the determination of any appeal.

• It is for the applicant for a stay to move the court to a favourable exercise of its discretion.

• It will not do so unless special circumstances are shown justifying the departure from the ordinary rule.

• The central issue will be whether the grant of a stay is perceived to be necessary to preserve the subject matter or the integrity of the litigation, or where refusal of a stay could create practical difficulties in respect of the relief which may be granted on appeal. It is often put shortly that it will first and foremost be necessary to establish that without the grant of a stay, the right of appeal, whether upon the grant of leave or special leave or not, will be rendered nugatory.

• If that can be demonstrated, the stay will generally still be refused unless it can be established that the appeal process, whether upon the grant of leave or special leave or not, has ultimately reasonable prospects of success so as to result in the grant of relief to the appellant.

• If that hurdle can be overcome, the stay may still be refused where it appears that the balance of convenience does not lie in favour of the applicant; where, for example, the grant of a stay will occasion hardship to the respondent which may not be alleviated by the terms upon which the stay may be granted."

22 The application for a stay was, as I have said, dismissed by Pullin J. It was renewed before the Full Court. As O 63 r 15 suggests, that is, in my opinion, open: JC Scott Constructions v Mermaid Waters Tavern Pty Ltd (No 2) (1983) 2 Qd R 255, 258. I come first, therefore, to consider the question of the need for the stay sought to preserve the integrity of the litigation in the context of the appellate proceedings, bearing in mind that the integrity of the litigation in this context is a concept essentially concerned with preserving to the appellant, on the basis that the appeal has reasonable prospects of success, the capacity to obtain the grant of relief by way of specific performance of the contract of sale or the award of damages sought by the appellant. The Court will look in that regard to see whether the refusal of the stay would create practical difficulties in respect of the relief which may be granted on appeal.

23 It was upon this aspect of the matter that argument before us was principally focused. For the appellant it was argued that if the orders made by the Commissioner were enforced, the contract for the sale of the land by Mr Arbuckle to the Bartletts would be performed. Settlement would occur. Mr Arbuckle would be paid the net proceeds of sale after the discharge of the mortgage. He would deal with those moneys as he proposed to assist in servicing the indebtedness of the business in which, through the relevant corporate entity, he was engaged. On the lodgement of the transfer the Bartletts would become the registered proprietors of the land. They would be free to mortgage it, perhaps even for more than it is truly worth. They might at least change the physical nature of the property and they could deal with it by way of resale and transfer to a third party.

24 I think it is proper to look at the question of the grant of a stay upon the basis that the consequences of the refusal of a stay might indeed be as submitted for the appellant, noting however that there is no evidence before the Court to suggest that the Bartletts wished to acquire this property for any other purpose than to reside in the house, making to it such changes as they may consider to be appropriate.

25 In short, the enforcement of the orders made by the Commissioner would result in the Bartletts becoming the registered proprietors, possessing that indefeasibility of title conferred by s 68(1) of the Transfer of Land Act 1893 (WA) except "in case of fraud". That position is, of course, also confirmed by s 134 of that Act.

26 The effect of those provisions and the limits of the concept of indefeasibility were recently discussed by this Court in LHK Nominees Pty Ltd v Kenworthy [2002] WASCA 291; (2002) 26 WAR 517. That was a case concerned with the concept of fraud in this context or, putting it otherwise, the case was concerned with the extent to which indefeasibility of title which would normally flow from the act of registration would be defeated or prevented from occurring by conduct of the registered proprietor or the party to the transaction upon whom indefeasible title would be conferred. Upon the authorities, the court held that indefeasible title would be prevented by fraudulent conduct, conduct which might be described as involving dishonesty or unconscionability sufficient to render it unconscientious that the person concerned and those taking through that person should enjoy the entirety of the rights in the property. In such a case, the court did not doubt that its power to make a restitutionary order, by way of the declaration of a remedial constructive trust or otherwise, was not to be overcome by calling in aid statutory indefeasibility of title. If the conclusion of the court was of the kind mentioned above, then the effect would be to deny indefeasibility, in terms on the face of the statute.

27 But this is a case of a different kind. Here, the Bartletts' title as registered proprietors of the land would derive solely from a curial order to remove Mrs Ardrey's caveat and to have Mr Arbuckle complete the process of transfer of the land in registerable form. What then, if the appeal should succeed? Could the orders sought be made, with the effect that the process by which registration was effected would be reversed, clearing the way for orders for the specific performance of the contract of sale by Mr Arbuckle to Mrs Ardrey and for Mr Arbuckle to execute a transfer in her favour?

28 Pullin J so held. His Honour envisaged orders by which the Bartletts would be directed to reconvey the land either to Mr Arbuckle, with consequential orders requiring him to execute a transfer to Mrs Ardrey, or ordering a conveyance by the Bartletts direct to Mrs Ardrey, in either case with appropriate orders being made in respect of financial matters. His Honour's conclusion is encapsulated in the following observations:

"This is a case where the Bartletts can only become the registered proprietor as a result of the order of the court directing the withdrawal of the caveat. That being so, the Bartletts submit to the jurisdiction of the court and their rights and obligations are subject to any order made by the court, including an order on appeal. By securing registration through the aid of a court order, the Bartletts impliedly accept that their rights are conditional upon the validity of the order which allows them to achieve that outcome."

29 His Honour relied upon the Supreme Court Act 1935 (WA), s 58(1)(a), conferring power on the Full Court, subject as otherwise provided in the Act and the Rules of Court, "to hear and determine ... applications ... to set aside or vary any verdict, finding or judgment found, given or made in any cause or matter tried or heard by a Judge ... ;". Further, his Honour noted that by s 59(4), on the hearing of any such application, the Full Court could exercise all the powers available on the hearing of an appeal and could exercise "all the jurisdiction, powers, and duties of the Court". Consistently with those provisions, his Honour noted that the Rules of the Supreme Court, O 63 r 10(2) authorised the Full Court to "make any order which ought to have been made" by the trial Judge "and to make such further or other order as the case may require." Under r 10(3) the Full Court possessed a very wide power to make "any order, on such terms as the Court thinks just, to ensure the determination on the merits of the real question in controversy between the parties."

30 His Honour thought that there was ample power, therefore, for the Full Court to make any orders which might be required to do justice between the parties if the appeal should succeed. I respectfully agree. In my view, it would be extraordinary if the amplitude of those powers should be cut down by the fact that the title conferred upon the Bartletts by curial order was indefeasible within the terms of the Transfer of Land Act from the point of registration. After all, indefeasibility of title is concerned with paramountcy of title having regard to potentially competing interests in the land. While the Bartletts have title as registered proprietors as a result of carrying into effect the orders made by the Court, their title is paramount. If, however, the Court was ultimately to exercise its undoubted power to set aside the orders which resulted in the conferral of that title, treating them as never having been made, and make new orders conferring title as registered proprietors on another party, in my opinion that process would involve no derogation from the principle of indefeasibility of title, while it exists, enshrined in the Transfer of Land Act.

31 There is recent persuasive authority supporting the correctness of that view in the form of a decision by a majority of the Queensland Court of Appeal, Williams JA and McMurdo J, Davies JA dissenting, in White v Tomasel [2004] QCA 89. Mr White was the registered proprietor of land sold at auction to the Tomasels. Before that occurred, Mr White had left the auction premises, believing that the bidding had not reached the reserve price and the land had not been sold. The auctioneer, however, executed the contract of sale on his behalf. When called upon to complete the transaction Mr White refused to do so. The Tomasels sued him in the Queensland District Court, which ordered him to proceed to settlement and execute a transfer, alternatively granting the Registrar of the Court power to execute the necessary documents.

32 In the view of the majority there were reasons sufficient to require it to set aside the orders so made, as a result of which settlement had been effected, the transfer registered, the Tomasels became the registered proprietors and the mortgage given by Mr White over the land had been discharged.

33 The majority recognised that such orders should not be made if the Court was precluded from doing so by the provisions of the Land Title Act 1994 (Qld) which provides for indefeasibility of title in the same way, substantively, as does our Transfer of Land Act, subject only to the case of fraud by the registered proprietor under s 184(3)(b) of that Act and, in the case of "an equity arising from the act of the registered proprietor" under s 185(1)(a). But the majority held that, although the case did not fall within those provisions, it was open to the Court to make orders depriving the Tomasels of their status as registered proprietors and restoring Mr White to that position. At [59] Williams JA held:

"The respondents' title was dependent upon the court making an order in favour of the respondents, an order without which they could not have become registered. A consequence of that is that the respondents were burdened with the validity of that court order; once that order was set aside the very foundation of their claim to registration was lost. Having submitted to the jurisdiction of the court, the court had power to make necessary orders to achieve restitutio in integram on setting aside the original order though that involved ordering a registered proprietor to convey land. Indefeasibility of title does not prevent a court from ordering the registered proprietor to deal with the land in a particular way if, as a result of litigation, it is established that the register should be altered or varied in some way."

34 His Honour went on to adopt, without reservation, the views expressed by McMurdo J. His Honour analysed in some detail the power of the Court to make a restitutionary order where there is an assertion of indefeasibility of title. At [73] his Honour concluded:

But in the present case, the restitutionary obligation on the respondents does not derive from any knowledge or notice of another person's unregistered interest in the land. Instead, it derives from the respondents' actions in acquiring their title by the orders of a court which should not have been made. There is no tension here between the enforcement of the restitutionary obligation and the policy and objectives of a Torrens system of title. To exempt the respondents from the performance of their obligations simply because they have reached the high ground of a registered interest would not advance the purposes of the Torrens system, but it would undermine the administration of justice by significantly limiting the powers of courts to correct erroneous judgments and to reverse their consequences. To hold that the registered interest of a proprietor in these circumstances is the subject of an obligation enforceable against the proprietor is not to derogate from that interest; it is simply to say that the interest itself, like other property, can be the subject of rights as a result of circumstances of the proprietor's making."

35 I respectfully agree. In my opinion, the plenary powers of the Court on appeal to declare that orders having the effect of conferring upon a party title to land were wrongly made and depriving them of that effect, are not to be cut down or limited by the fact that the effect of the orders, while their operation continued, was to provide indefeasible title. For that reason, in my opinion, the application for the stay of execution failed to meet its first and most important hurdle. The grant of the stay was not, in my opinion, on the evidence before the Court, necessary to preserve the integrity of the litigation. It was not demonstrated that the refusal of the stay would create practical difficulties in respect of the relief which might be obtained on appeal.

36 I was relieved by that view of the need to consider whether the appeal on the grounds advanced has reasonable prospects of success and I make no observation upon that question beyond expressing my concurrence in the views of Pullin J.

37 On the other hand, in case I am in error in the views expressed above I should say that if all other hurdles in the way of the grant of this exceptional relief had been overcome by the appellant, and upon the basis that the Court on appeal would have no capacity, even if otherwise appropriate, to make orders to pave the way for and ultimately to provide for the specific performance of a contract for the sale of the land by Mr Arbuckle to Mrs Ardrey, leaving only the capacity to award damages, I would be of the view that the balance of convenience, as it is put, would favour the refusal of the stay.

38 In my view, the material before the Court at first instance, which we were told remained the position upon the hearing of the application for a stay by the Full Court, was sufficient to demonstrate a degree of hardship being suffered and which would continue to be suffered by Mr Arbuckle if the stay were granted.

39 I have said something about the acquisition of the business conducted by the Swan Valley Cheese Company. In the result, it appears that the total debt load, including interest commitments, is probably in the order of about $1.2M. Mr Arbuckle anticipated that the net proceeds of the sale of the property to the Bartletts would be about $825,000, reducing his liability and that of the company to its bankers to a sum in the order of $375,000. Mr Arbuckle deposed to the fact that alternative finance of in the order of $440,000 would be available to him, enabling him to completely pay out the commitment to the bank and pay the creditors of the company.

40 Because it was not possible to pursue that plan, expressions of interest were sought for the acquisition of the Swan Valley Cheese Company and the business it operates. None were received. The creditors remained unpaid. Some have obtained judgment. Others were threatening to sue. Mr Arbuckle and his wife were found by Pullin J to be suffering significant stress. Mrs Arbuckle has become ill. His Honour concluded that, "The Arbuckles' dire position is in this case an overwhelming factor against the grant of a stay." I note also that Mr Arbuckle's financial woes were increased by the order that he was to pay $15,000 to the Bartletts on the establishment of their claim for damages for the distress and suffering caused by not having the matter

resolved. In addition, there are their out of pocket expenses and the interest.

41 On the other hand, it should not be overlooked that Mrs Ardrey stood to lose her equity in the property, the opportunity to buy a house which she was obviously determined to acquire, and there is some force in the proposition that an incapacity to pursue the principal remedy of specific performance of the contract made with her would be a loss which may not be adequately compensated by an award of damages. However, in all the circumstances, upon the evidence before the Court, it seemed to me that the balance of convenience was substantially in favour of the refusal of a stay of execution in any event. It was for those reasons that I joined in the order dismissing the application.

42 STEYTLER J: I have had the advantage of reading the judgment of Murray ACJ. I agree with it, save that I have found it unnecessary to decide the question whether or not, if the appeal had succeeded (it was discontinued not long after the making of our orders), but the first respondents ("the Bartletts") were by then to have registered their title to the property sold to them by the second respondent ("Mr Arbuckle"), this Court would have the power to direct the Bartletts either to reconvey the property to Mr Arbuckle so that he could, in turn, convey it to the appellant ("Mrs Ardrey") or to direct the Bartletts to convey the land directly to Mrs Ardrey. It seemed to me to be unnecessary to answer that question given that, in my opinion, the balance of convenience overwhelmingly favoured a refusal of the stay, even if it be assumed that this Court does not have the power to which I have referred.

43 Pullin J, in refusing the stay application, found that the severe financial and emotional stress and health problems suffered by Mr Arbuckle and his wife as a result of Mr Arbuckle's inability to complete the sale of his house outweighed all other factors. I agree with him.

44 In 2001 Mr Arbuckle, as trustee of the Ashley Arbuckle Trust, acquired a 50 per cent interest in the Swan Valley Cheese Company Pty Ltd. On about 7 November 2002, he borrowed $450,000 from BankWest to acquire the remaining 50 per cent interest. He and his wife guaranteed that loan. Mr Arbuckle also mortgaged his home (being the property the subject of these proceedings) in favour of the bank. He and Mrs Arbuckle also mortgaged a property owned by them in Ellenbrook. Then, having discovered that the company owed a good deal more to its creditors than had been disclosed, Mr Arbuckle arranged for a sum of $85,000 to be

loaned to the company by BankWest. Mr Arbuckle guaranteed that loan (in his capacity as trustee of the Ashley Arbuckle Trust). So, too, did Mrs Arbuckle. However, matters went from bad to worse and, by the time of the making of our orders, Mr and Mrs Arbuckle owed to BankWest an amount of over $1.2 million.

45 Mr Arbuckle managed to make arrangements for the refinancing of his debt, but these could not be effected until he sold the property and paid the proceeds of sale to BankWest. In the meantime a bailiff had been put in to seize goods and other creditors were threatening legal action. Not surprisingly, all of this caused enormous stress to Mr Arbuckle and his wife and Mrs Arbuckle has become ill as a result of it.

46 Mrs Ardrey, on the other hand, would have lost the house which she particularly wanted to buy, had her appeal succeeded and had the Court not had the power to which I have earlier referred. However, she would still have had a remedy in damages. While Mr Arbuckle's financial situation is dire, the evidence does not go so far as to establish that it is so hopeless as to render worthless a remedy of that kind. Moreover, if Mrs Ardrey's appeal had succeeded (and that might have been difficult to achieve, given that the judgment of the Commissioner rests largely upon credibility findings which seem, on the face of it, to have been carefully considered and open to him) there is no certainty that specific performance of the contract made by her with Mr Arbuckle would have been ordered. This is more especially so if account is taken of the finding of the trial Judge that Mrs Ardrey was told, on 24 January 2004, that Mr Arbuckle was proposing to sell the property to the Bartletts for a cash amount of $850,000 (being $25,000 less than the purchase price under Mrs Ardrey's contract) and that Mrs Ardrey could herself purchase the property on the same terms but that Mrs Ardrey declined to do so.

47 In all of these circumstances, I was satisfied that the balance of convenience overwhelmingly favoured a refusal of the stay. For that reason, I joined in the orders made by the Court.

48 TEMPLEMAN J: I have had the advantage of reading in draft the reasons to be published by Murray ACJ and Steytler J.

49 I joined in the decision to refuse a stay of the judgment under appeal because it seemed to me that the balance of convenience fell heavily in favour of the respondents for the reasons given by Steytler J.

50 As the matter has now settled, I do not think it necessary to deal with any other issues raised in the application.