BATTLE v BUNDAGEN CO-OPERATIVE LTD

CATCHWORDS: APPEAL - civil - stay of orders made at trial - stay of execution of writ of possession - PROCEDURE - stay of execution of writ of possession - writ issues against occupant of land as licensee of Co-operative

LEGISLATION CITED: Supreme Court Act 1970 (NSW), s 75A

CASES CITED: Andrews v John Fairfax & Sons Ltd [1979] 2 NSWLR 184 McCrachett v Shamballa Co-operative Ltd (unrep, NSWCA, 10 December 2001)

PARTIES: Christopher Battle - Applicant Bundagen Co-operative Ltd - Respondent

COUNSEL: D Petrushnko - Applicant P Singleton - Respondent

SOLICITORS: Applicant Self-represented Carty & Cox Solicitors - Respondent

LOWER COURT JURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): SC 2009/293060

LOWER COURT MEDIUM NEUTRAL CITATION: Bundagen Co-Operative v Battle [2010] NSWSC 160

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2009/293060

28 September 2010 Christopher BATTLE v BUNDAGEN CO-OPERATIVE LTD Judgment 1 BASTEN JA: From 1989 to July 2007, the applicant, Mr Christopher Battle, was a resident at the "Outback Village". He occupied premises constructed on land owned by Bundagen Co-operative Ltd, pursuant to his entitlement as a member of the Co-operative. I am advised by counsel, although no evidence to this effect is before me, that his entitlement constituted a licence to occupy specified premises, pursuant to the rules or other constitutive document of the Co-operative. 2 A meeting of the Co-operative held on 22 July 2007 determined that his behaviour had been unacceptable and terminated his membership of the Co-operative. The resolution of that meeting did not end the dispute and a further meeting was held on 29 November 2008, with resolutions to similar effect being passed. The applicant did not leave willingly and proceedings were commenced in the Supreme Court seeking declarations and consequential relief. On 5 March 2010 Latham J declared that the resolution passed on 22 July 2007 was valid and effective to expel the applicant from the Co-operative. Her Honour further ordered that the applicant cease to reside on or occupy any part of the land owned by the Co-operative and granted leave to issue a writ of possession: Bundagen Co-operative Ltd v Battle [2010] NSWSC 160. 3 On 1 April 2010 the applicant filed and served a notice of intention to appeal. 4 On 7 May 2010 Hidden J granted a stay of the writ of possession until 4 pm on 7 June 2010 on certain conditions. (It appears to have been assumed that the notice of intention to appeal expired on Monday, 7 June, the period for lodging a notice of appeal having expired on Saturday, 5 June 2010.) The conditions of the stay were as follows: "(1) Not to assault, harass, threaten, molest, intimidate or otherwise interfere with members of the Co-operative, people living on the Co-operatives land or visitors to the Co-operatives land. (2) Not to approach, contact or communicate with any member of the Co-operative, any person living on the Co-operative land or any visitor to the Co-operative land who has indicted to him that they do not wish to be approached, contacted or communicated with. (3) Not to approach, contact, or communicate with any member of the Outback Village or Roger Horton. (4) To communicate with the Co-operative co-ordinator and/or directors only through legal representatives. (5) Not to use or interfere with Co-operatives, equipment." 5 The form of the order left something to be desired, but its intention was reasonably clear. 6 A further notice of motion for a stay came before Hidden J on 18 June 2010, his Honour granting a further stay, on similar conditions to those noted above, until "the earlier of (a) the discontinuance or disposal of the appellate proceedings or (b) the disposal of any application for a discharge of the stay". Either party was entitled to apply on two days notice to Latham J for a continuation or discharge of the stay. The respondent was directed to support any application by the applicant to expedite the appeal proceedings. 7 The applicant's summons for leave to appeal and white folder were filed on 7 June 2010. On 3 August 2010 the parties were advised that the application for leave to appeal and the appeal were to be heard concurrently. 8 The respondent brought the matter back before Latham J on 13 September 2010, seeking to have the stay discharged on the basis of the following undertaking: "(a) for the period of 14 days after the completion (including by way of any discontinuance) of the [applicant's] proceedings in the Court of Appeal, it shall not interfere with the buildings and other improvements made to the home site allocated (or previously allocated) to the [applicant] or any chattels therein, and it shall not permit any other person so to interfere; and (b) if the Court of Appeal makes an order setting aside the orders made on 5 March 2010 then the plaintiff will not be prevented from returning to live on that home site (until such time, if any, as he is expelled again or otherwise loses the right to reside there); and (c) if the Court of Appeal dismisses the proceedings before it, the [Co-operative] shall, for 14 days thereafter, allow the [applicant] reasonable access to that home site for the purpose of his removing his chattels therefrom." Applicable principles 9 The respondent submitted that the principles to be applied on an application for stay of a judgment placed an onus on the applicant to demonstrate that if a stay were not granted, there would no reasonable probability of restoring him to his earlier position, after a successful appeal: cf Andrews v John Fairfax & Sons Ltd [1979] 2 NSWLR 184 at 189. This test, it was submitted, was clearly distinguishable from the balance of convenience test which was to be applied on an application for an interim injunction. 10 It is not helpful to consider the considerations which might be relevant in other cases. In terms of broad principle, a stay is more likely to be granted where to allow enforcement of the judgment below would result in the destruction of the subject matter of the appeal or, if it were a money judgment, its dissipation so as to render remote the chances of restitution in the event the appeal succeeded. 11 Nor is this case analogous to that commonly encountered in respect of possession of land, where a mortgagee is seeking to exercise a right of sale to recoup a debt owing to it. In the present case, the undertaking offered by the Co-operative, which would operate if no stay were granted, seeks to preserve any legitimate financial interest of the applicant in the property, subject to his valid expulsion, pending determination of the appeal. In substance, the Co-operative asserts it should not have a member foisted upon it in the face of opposition from its own membership, so as to require its members to live in close proximity to such a person. 12 The applicant seeks to obtain support from a judgment of Priestley JA in McCrachett v Shamballa Co-operative Ltd (unrep, NSWCA, 10 December 2001) involving somewhat similar circumstances. His Honour noted that the worst features of the defendant's behaviour had been the subject of conditions imposed on the grant of the stay and that, whilst the appeal could not be dismissed as frivolous or otherwise hopeless, his Honour was inclined to think that it was more likely to fail than to succeed. There was a stay granted in that matter. 13 Counsel for the Co-operative (who also appeared in that matter) asserted that Priestley JA had not identified and applied the correct test. I do not necessarily accept that proposition, but I find the judgment of little assistance as a precedent, because it turns substantially on its own facts. Application of principles 14 The applicant asserts four grounds upon which a stay should be ordered. These were:

(1) reasonable fears that his residence would be demolished, as occurred with the previous occupier of the allotment; (2) reasonable fears that property would be stolen from his premises; (3) reasonable fears that the property may face destruction by fire, particularly during the bushfire season, if there is no one in residence, and (4) health issues personal to him. 15 The first matter must be disregarded. It is not known why the previous dwelling was demolished, but there is no suggestion it was done otherwise than by or with the authority of the Co-operative, for valid reasons. In any event, the undertaking disposes of the reasonableness of any such fear. 16 In relation to the second matter, the undertaking of the Co-operative is sufficient to dispose of any reasonable fear that it would interfere with his property in any way or would "permit" any other person so to interfere. That is obviously no guarantee against malicious persons taking advantage of the absence of the owner, nor could such a guarantee be expected. It may be that there is some basis for the applicant's concern in circumstances where emotions appear to have run high in the dispute between the Co-operative and the applicant. Further, the applicant relied upon evidence of two neighbours that items had been stolen from their homes during periods of absence. However, it is not easy to assess the significance of that evidence, nor does the applicant appear to have faced any such intrusion himself, although an affidavit filed on behalf of the Co-operative asserted that he had been absent overseas in or about 2006. 17 While such fears cannot be totally discounted, given the undertakings of the Co-operative I do not intend to place weight on them. 18 Thirdly, the applicant referred to the importance of being in his home during the bushfire season, to maintain the home site so as to minimise the danger from fire, as well as responding to any actual fire. 19 This is a matter of little weight. Members of the community comprising the Co-operative would have common interests in protecting the area from bushfire. Indeed, the Co-operative, which presently has a costs order in its favour, would have a direct financial interest in preserving the property of the applicant. 20 The fourth matter concerned health issues. The applicant tendered a medical certificate from his general practitioner which stated that he was suffering from "depression/anxiety". It further stated that he had been under the care of a psychiatrist and a social worker and the area mental health unit. Without providing any detail of the mental condition or any professional opinion, the general practitioner merely noted the applicant's beliefs that he believed leaving his home would exacerbate his mental condition, his feeling that he was incapable of relocating and his belief that remaining in his home would be beneficial therapeutically. As counsel for the Co-operative noted, such repetition of the applicant's own beliefs provided no medical support for this ground. 21 I am not, however, prepared to discount the ground entirely. The fact that the applicant has a disability pension, based upon his mental condition, suggests that it is not insignificant. Further, his general practitioner describes it as "depression/anxiety", which may be accepted. Given that the applicant is 60 years of age and has resided at the "Outback Village" for over 20 years, it may also be accepted for the purposes of the present application that removal will cause significant distress and may well exacerbate his mental condition. On the other hand, if the judgment and writ of possession require him to find other accommodation, it is arguable that he should confront that eventuality sooner rather than later. Nevertheless, I accept that there is a degree of hardship involved which would be avoided if the judgment below were not to be enforced. 22 Apart from the applicant's own beliefs and mental condition, there are three factors which weigh in favour of granting a stay until the determination of proceedings in this Court. First, it is likely the applicant will obtain a hearing in approximately six months time. Of that period, approximately six weeks results from the Court's summer vacation. Some allowance must also be made for a further period the pending delivery of judgment. Whilst the Co-operative and its members are entitled to enjoy the benefits of the judgment as soon as possible, approximately half of the likely period between the initial judgment and the determination of the appeal has already passed, with the applicant still in residence. 23 Secondly, the hardship to the Co-operative and its members is not easy to assess, and involves some history with which this Court is not familiar. There is no evidence in this Court which explains the background to the disputes which led to the expulsion of the applicant from the Co-operative. On the other hand, the applicant has remained on the land subject to strict constraints on his behaviour and communication with other members, without any suggestion that he has breached those conditions. In addition, he says, again without contradiction, that his allotment is approximately one acre in size and that he cannot see his neighbours' houses due to trees and sheds. 24 Ms Xerri, who has given an affidavit for the Co-operative, stated that the applicant's presence on Bundagen "causes me discomfort" and that it "makes me uneasy to know that he continues to live nearby". It does not appear that she is an immediate neighbour, but she quotes the words of those who apparently are neighbours, stating that the applicant's presence is a source of "great anxiety", creates "a very unpleasant feeling" and creates "a lot of anxiety and fear". The only identified source of the anxiety and discomfort is one statement to the effect that "I don't know what he can do or what he is up to bringing stuff such as a broken down van on to the land". 25 The difficulty with this evidence is that it leaves the Court quite uninformed as to the sources of the discomfort and anxiety, and the seriousness of the hardship which the neighbours claim. The concerns may arise from past behaviour and may not take into account the conditions under which the applicant continues to reside at the "Outback Village". Although the conditions were no doubt formulated by the Co-operative, they contain no reference to bringing unwanted 'stuff' onto the land. The evidence is of little weight. 26 Counsel for the Co-operative emphasised the need for this Court to be satisfied that there are reasonable grounds for appeal. Such an assessment is made more difficult by the fact that several of the grounds refer to contravention of rule 47 of the Co-operative's rules. That rule is summarised at [5], but not set out in terms in the judgment. Her Honour accepted that there is "some merit in the [applicant's] argument" in this respect: at [57]. Secondly, the applicant complains that her Honour did not correctly address the operation of rule 90. Although the rule is summarised at [59], it is difficult to assess the substance of the argument from the description given in those paragraphs of the judgment dealing with that issue. 27 Other complaints go to questions of procedural fairness, improper purpose and bad faith, which require an assessment of the evidence, none of which is yet before this Court. 28 Some of the grounds of appeal, such as (6) asserting Wednesbury unreasonableness, appear to misconceive the nature of the appeal, which is by way of rehearing pursuant to s 75A of the Supreme Court Act 1970 (NSW). Other grounds bear an air of implausibility, but some are appropriately expressed in terms which would appear, on their face, to invite considered assessment by this Court. On the evidence before me, I am not prepared to refuse a stay on the basis that there are no reasonably arguable grounds of appeal. 29 The notice of appeal appears to have been drafted with professional assistance; the summary of argument, signed by the applicant himself, bears a different inference. Nevertheless, the applicant has had the benefit of counsel for the purposes of this application and I do not assume that he may not have further legal assistance in presenting argument on the appeal. If that were to be the case, it would be highly desirable that the summary of argument be replaced by proper written submissions. Indeed, there will need to be supplementation of the white folder by inclusion of the evidence before the trial judge. Conclusion 30 I propose to continue the operation of the stay which was in force until yesterday, on the conditions imposed by Hidden J in June, which have been complied with so far. My reasons for making that order are in summary as follows:

(a) the hardship caused to the applicant in having to leave his residence of 20 years in circumstances where he suffers from a mental condition sufficient to entitle him to a disability pension will be significant;

(b) that hardship should not be imposed unless pursuant to a valid expulsion from the Co-operative;

(c) whilst a judge of this Court has held that the expulsion was valid, the applicant seeks to appeal upon grounds which appear to be reasonably arguable and cannot be dismissed as unfounded;

(d) accepting that his continued presence on the land renders his neighbours anxious and uncomfortable, there is nevertheless no material before the Court which would demonstrate the nature of their concerns, nor whether they are current, given the conditions of the stay;

(e) the period of continued residence is unlikely to be greater than six months which, although a significant period, must be seen in the light of his own residence over 20 years, his continued residence during the terms of the dispute over some three years and where half the likely period between the judgment and the determination of the appeal has already passed, and

(f) taking into account the undertaking proffered by the Co-operative in the event of the applicant's removal from the property, which also indicates that the Co-operative has no immediate financial or other interest in his removal beyond its wish to enforce its own resolutions of expulsion and conform to the wishes of its members. 31 The matter should be listed expeditiously, but without prejudice to other matters already fixed for hearing. 32 The Court orders:

(1) Subject to compliance with the conditions set out in (2) below, execution of the writ of possession issued pursuant to leave granted on 5 March 2010 be stayed until the determination of the proceedings in this Court.

(2) The stay is conditional upon the applicant (Christopher Battle): (a) not assaulting, harassing, threatening, molesting, intimidating or otherwise interfering with members of the Co-operative, people living on the land of the Co-operative, or visitors on the land of the Co-operative; (b) not approaching, contacting or communicating with any member of the Co-operative, any person living on the land of the Co-operative or any visitor on the land of the Co-operative who had indicated to the applicant that they do not wish him to approach, contact or communicate with them; (c) not approaching, contacting or communicating with any member of the "Outback Village" or Roger Horton; (d) communicating with the Co-operative co-ordinators and directors of the Co-operative only through the legal representatives of the Co-operative, and (e) not using or interfering with equipment owned by the Co-operative.

(3) Order that the concurrent hearing of the application for leave to appeal and the appeal be fixed for hearing at a date as soon as possible, without requiring the vacation of the date of any other matter already fixed for hearing.

(4) Order that the costs of the motion be the applicant's costs in the appeal. **********

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