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[2025] QCA 199
procedural. The application to adjourn the stay application was refused. The stay application was refused. The applicants were ordered to pay the respondents' costs of and incidental to the stay application,...
Doyle JA refused to pause enforcement of the judgment while the applicants pursued an appeal. The Court could hear the stay application even though the appeal was filed late and no extension had yet been granted. It assumed the appeal was arguable, but the applicants had not explained what defence might have changed the original result. Their delay, missed deadlines, limited evidence about their finances, and failure to address the respondents' prejudice all weighed against a stay. Possible bankruptcy and liquidation were relevant but did not outweigh the respondents' interest in their unpaid judgment on the material before the Court. The Court also noted that the alleged failure of the applicants' former solicitors to attend might be relevant to a separate application to set aside the judgment, but did not decide that question.
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2,539 words · generated 07/10/2026
2 cited instruments linked from this judgment.
Clayton v Ebborn [2025] QCA 199 is a decision by Doyle JA on an application to stay enforcement pending appeal. It is not a decision determining the applicants' appeal against the underlying orders. The appeal was listed for hearing on 2 February 2026, and the application to extend time for filing the appeal had not yet been heard [1], [8].
The underlying proceeding concerned allegations that Benjamin Clayton, a director of Streamline Pro Pty Ltd, acted improperly by transferring its business or assets to TK Global Pty Ltd, of which he was the sole director and shareholder [2]. Following an order for disclosure on 2 August 2023, the respondents applied for judgment under r 374 of the Uniform Civil Procedure Rules 1999 (Qld). Wilson J later ordered the applicants to provide an affidavit addressing the existence, whereabouts or loss of relevant documents. The judgment records that this order appeared not to have been complied with [3].
On 7 March 2024, Bradley J entered judgment under r 374. The orders included declarations that Mr Clayton contravened s 181(1) of the Corporations Act 2001 (Cth) by transferring Streamline Pro's assets to TK Global for no consideration, that TK Global was involved in that contravention, and that Mr Clayton breached fiduciary duties. Compensation was to be assessed [4]. On 22 April 2025, Callaghan J entered judgment for $707,484.49 plus costs. The judgment says that none of that amount had been paid [5].
The applicants filed their notice of appeal on 21 August 2025, more than 1.5 years after Bradley J's orders. Their sole stated appeal ground challenged the adequacy of Bradley J's reasons. Although their appeal was against Bradley J's orders, one order they sought was to set aside Callaghan J's judgment [7], [9]. The appeal also faced an unresolved extension-of-time application, filed without supporting affidavit material [8].
The stay application was filed on 22 September 2025. The applicants raised concerns about lack of notice and their former legal representatives' non-attendance, and argued that bankruptcy or winding-up could cause irreversible consequences [11]-[15], [34]. Doyle JA refused an adjournment and refused the stay. The applicants were ordered to pay the respondents' costs, including reserved costs fixed at $22,000.
Doyle JA first rejected the respondents' submission that the Court had no jurisdiction because the notice of appeal was out of time and no extension had been granted. The judgment distinguishes an appeal requiring leave from one that does not. For an appeal requiring leave, the relevant decision may not be “subject to an appeal” until leave is granted. But where leave is not required, filing the notice late does not make it a nullity. Doyle JA therefore read r 761(2) as applying to the late-filed notice in this case [17]-[18]. The Court also retained inherent jurisdiction to consider a stay [19].
The governing stay considerations were described as established. The applicants had to show that a stay was appropriate. Relevant matters included whether there was an arguable appeal, whether refusing a stay would render the appeal nugatory, the competing prejudice to each side, the successful party's entitlement to the fruits of judgment, and whether a stay was necessary to ensure any eventual orders would be effective [20]. Doyle JA proceeded on the assumption that the appeal was arguable, without detailed analysis [22]. That assumption did not determine the application in the applicants' favour.
A central difficulty was that the applicants had not explained what they would have put to Bradley J, or identified a defence that could have altered the outcome [23], [28]. Although Mr Clayton said he had complied with requests for disclosure, the notice of appeal itself sought to have the respondents' judgment application dismissed conditionally on producing documents covered by earlier orders. Doyle JA considered that this appeared to accept that those orders had not been complied with [23].
The notice issue was treated carefully. The respondents' affidavit material showed that notice of the application before Bradley J had been given to the applicants' then representatives [6], [25]. Mr Clayton's evidence was that his solicitors had not told him the matter was listed and had described it as “finalised” [13], [26]. Doyle JA observed that those circumstances might support an application to set the judgment aside. However, there was no evidence from the solicitors, and the Court expressly did not suggest that they had acted improperly [26]. Nor had the applicants identified what they would have argued at a rehearing. The possible separate set-aside issue therefore did not establish that a stay should be granted [27]-[28].
Delay and the progress of the proceedings also counted against relief. The appeal was filed more than 1.5 years after judgment [29]. The date Mr Clayton learned of the judgment was unclear; no affidavit supported the extension application; a stay was not sought for about two months; and the applicants had not complied with the timetables for prosecuting the appeal or stay application [31]-[32]. Doyle JA referred to the principle that courts should not be disposed to delay enforcement of court orders [33].
Finally, the Court balanced the claimed personal and corporate consequences against the respondents' position. The applicants offered no detailed evidence of their financial capacity and did not properly formulate their proposed undertaking concerning assets [35], [43]. Liquidation of TK Global would not necessarily make the appeal nugatory, because its rights could be held and dealt with by a liquidator [36]-[37]. Mr Clayton's possible bankruptcy had broader implications and was a relevant consideration, but the Federal Court application concerning the bankruptcy notice remained pending, and Mr Clayton had advised that he had presented a debtor's petition [38]-[41]. Against that, the respondents remained out of the judgment sum and interest was likely to continue accruing [42]. On the material presented, the applicants' asserted prejudice did not outweigh the judgment creditors' interest [44].
The decision does not announce a new general test for stays pending appeal. Doyle JA described the applicable principles as “well established” and set out the relevant factors at [20]. The decision's contribution is its application of those considerations to the particular combination of a late notice of appeal, an unresolved extension application, an alleged failure by former solicitors to attend, and possible insolvency consequences.
On jurisdiction, the judgment explains how r 761(2) applies where an appeal does not require leave but its notice is filed out of time. It distinguishes that situation from an appeal that can only proceed with leave. The late notice was not a nullity, and the Court also relied on its inherent jurisdiction [18]-[19]. This reasoning does not decide the extension-of-time application itself.
On setting aside an order, the judgment refers to the Court's inherent power where an order has occasioned a miscarriage of justice. It states, by reference to Kleeman v The Star Entertainment Group Limited and Allesch v Maunz, that an adequately explained failure to appear may be relevant, subject to whether a different result might be reached on rehearing and whether rehearing would cause irremediable injustice [27]. Doyle JA did not decide whether the applicants satisfied that principle; the point was raised as a possible separate avenue, not resolved in the stay application [26]-[28].
On insolvency-related prejudice, the judgment rejects a categorical approach. Liquidation or bankruptcy is not automatically decisive. Its weight depends on the circumstances, including the effect on the appeal and the broader impact on the individual [36]-[41]. The judgment records that a trustee or liquidator might pursue the appeal, while also recognising that personal bankruptcy may diminish the prospects of an appeal proceeding and have consequences beyond the appeal [36]-[40].
The judgment therefore applies earlier authorities rather than replacing them. It does not state that the principles governing stays, late appeals, or set-aside applications changed after this decision. Nor does the text establish any later change in the law.
At [18], Doyle JA says a late notice of appeal is “not a nullity” where leave is not required. In plain English, lateness did not by itself prevent the Court from considering whether enforcement should be paused. The Court still had to decide whether a stay was justified, and the extension application remained unresolved.
At [20], the judgment places the burden on the applicant to establish that a stay is appropriate. The listed considerations are not presented as an automatic checklist producing a fixed result. They frame a discretionary assessment: the strength of the appeal, the practical effect of enforcement, each side's prejudice, the judgment creditor's position, and the usefulness of a stay.
At [26], Doyle JA says the former solicitors' non-appearance and Mr Clayton's account “may support an application to have the judgment set aside.” This is carefully limited language. The Court did not set aside the judgment, decide the merits of a set-aside application, or find that the former solicitors acted improperly. It recorded that there was no material from the solicitors and left that matter to be examined.
At [33], Doyle JA quotes the proposition that “courts should not be disposed to delay the enforcement of court orders.” In context, this supported the Court's concern about unexplained delay and the applicants' failure to meet procedural timetables. It did not mean delay alone determined the application.
At [40], the Court said that if the Federal Court did not extend time to comply with the bankruptcy notice, and the notice was not complied with, the balance “may better favour” a stay in those different circumstances. The point was conditional. The Federal Court application was pending, so the asserted bankruptcy prejudice was not treated as an accomplished event at the time of decision.
At [44], Doyle JA concluded that the applicants' asserted prejudice did not outweigh the consideration that trial judgments should not be treated as “merely provisional” and that a successful party is entitled to the fruits of judgment. In plain English, an appeal does not by itself suspend the practical significance of a judgment. The applicants needed evidence and submissions sufficient to justify withholding enforcement in this particular case.
The reasoning is most directly relevant to stay applications where an appeal not requiring leave has been filed late, but the extension application has not yet been decided. The case indicates that lateness does not itself make the notice a nullity for the purpose of considering a stay [17]-[19]. It does not determine whether an extension should be granted.
It is also relevant where the proposed appeal challenges reasons for a default judgment, but the stay applicant does not identify what defence or submission would have been advanced at the original hearing. The absence of a concrete account of how the result might change was important to the Court's assessment [23], [28].
A related fact pattern involves an alleged failure by legal representatives to attend a hearing, alongside evidence that notice was given to those representatives. The judgment treats the client's explanation as potentially relevant to a separate application to set the order aside, but does not treat it as automatically establishing a stay [25]-[28]. The evidence and the possible outcome on rehearing remain important in the analysis stated by Doyle JA.
The decision also bears on applications in which a party says enforcement may prompt liquidation or bankruptcy. It shows that those consequences may be relevant, but their weight depends on evidence and context. The Court considered whether the appeal could continue through a liquidator or trustee, the status of related proceedings, the claimed impact on the individual, and prejudice to the judgment creditors [36]-[43].
Finally, the judgment is pertinent where the stay applicant has delayed, missed court-ordered timetables, provided limited evidence about means, or offered an undertaking without details. Those were features of this application and contributed to the conclusion that the applicants had not established a proper basis for relief [29]-[33], [35], [43]-[44].
The supplied judgment was delivered on 23 October 2025. Its text does not identify any later court decisions considering Clayton v Ebborn, so no conclusion about subsequent treatment can be drawn from this source.
The judgment itself explains how Doyle JA used earlier authorities. Stone v Copperform Pty Ltd was distinguished when the Court considered the jurisdictional objection, because it concerned an appeal for which leave was required [18]. West v Secure Funding Pty Ltd was cited for the Court's inherent jurisdiction to consider and grant a stay [19].
Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd was applied in the discussion of delay and enforcement, and cited in relation to the judgment creditor's entitlement to the fruits of judgment [33], [37], [44]. Kleeman v The Star Entertainment Group Limited informed the discussion of the inherent power to set aside an order and the relevance of delay [27], [30]. Allesch v Maunz was cited within that discussion for the circumstances in which a failure to appear may raise a miscarriage-of-justice issue [27].
Condo v Nguyen was cited for the potential significance of bankruptcy to the prospects of an appeal proceeding [38]. Bresam Investments Pty Ltd v Shmee Pty Ltd was considered in relation to the proposition that threatened bankruptcy or liquidation is not decisive in every case and that its weight varies with circumstances [39]. The judgment also cited DL v The Queen, Built Qld, Barnes, Karabagias, and Greenslade concerning the adequacy of reasons [23], and Chapel of Angels in stating the stay principles [20]. Those are the relationships established by this judgment; the supplied text does not establish how other courts have treated those authorities after Clayton.
The Court did not decide the appeal or the extension-of-time application. The sole appeal ground challenged the adequacy of Bradley J's reasons, but Doyle JA did not finally determine whether the reasons were inadequate or whether the orders should be disturbed [8]-[10], [22]-[23].
The possible set-aside issue also remained unresolved. Doyle JA identified circumstances that might support an application, including the alleged failure to notify Mr Clayton and the former solicitors' absence, but noted the absence of evidence from those solicitors and the absence of an identified defence that could alter the outcome [26]-[28]. The judgment makes no finding about misconduct by the former legal representatives.
The effect of the pending Federal Court application concerning the bankruptcy notice was not decided. Doyle JA described a possible different balance if the Federal Court did not extend compliance time and the notice was not complied with, but the application had not yet been determined [15], [40]. The judgment also does not resolve the status or consequences of Mr Clayton's reported debtor's petition; it records his late email and uses that information in assessing the claimed prejudice [16], [41].
Finally, although the judgment discusses the respondents' unpaid assessment judgment and possible accruing interest, it does not decide the applicants' ultimate liability on appeal, the amount of any final compensation, or the outcome of the separate statutory-demand and bankruptcy processes [5], [14]-[15]. Those matters were outside the stay decision.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on, relying on, or using this analysis, have a qualified Australian lawyer check it.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: Clayton v Ebborn [2025] QCA 199
PARTIES: BENJAMIN JOSEPH CLAYTON / (first applicant) / TK GLOBAL PTY LTD / ACN 631 217 224 / (second applicant) / v / DAVID JOHN EBBORN / (first respondent) / STREAMLINE PRO PTY LTD / ACN 162 700 601 / (second respondent)
FILE NO/S: Appeal No 3723 of 2025 / SC No 11976 of 2022
DIVISION: Court of Appeal
PROCEEDING: Application for Stay of Execution
ORIGINATING COURT: Supreme Court at Brisbane – Date of Orders: 7 March 2024 (Bradley J)
DELIVERED ON: 23 October 2025
DELIVERED AT: Brisbane
HEARING DATE: 23 October 2025
JUDGE: Doyle JA
ORDERS: The application made by the applicants to adjourn the application for stay is refused. The application for a stay is refused. The applicants are to pay the respondents’ costs of and incidental to the application for a stay including the costs reserved on 8 and 16 October 2025 fixed in the amount of $22,000.
CATCHWORDS: APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – where orders were made requiring the applicants disclose certain documents – where the applicants did not comply with those orders – where the respondents filed an application for judgment pursuant to r 374 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) – where orders were subsequently made requiring the applicants to file and serve an affidavit in relation to certain documents – where the respondents’ application came back on before Bradley J – where neither the applicants nor their legal representative attended that hearing – where judgment was entered – where the applicants seek a stay of enforcement of the orders made by Bradley J – where the applicants’ sole ground of appeal challenges the adequacy of the primary judge’s reasons – where the applicants submit there was a denial of procedural fairness by reason of the applicants not receiving adequate notice of the hearing and their former legal representatives failing to appear – where the applicants submit that they will suffer irreversible consequences if liquidation or bankruptcy proceedings occur before determination of the appeal – whether a stay should be granted / Uniform Civil Procedure Rules 1999 (Qld), r 761 / Barnes v The State of New South Wales [2017] NSWCA 254, cited / Bresam Investments Pty Ltd v Shmee Pty Ltd [2008] VSCA 251, considered / Built Qld Pty Limited v Pro-Invest Australian Hospitality Opportunity (ST) Pty Ltd (2022) 13 QR 148; [2022] QCA 266, cited / Chapel of Angels Pty Ltd v Hennessy Building Pty Ltd (2019) 2 QR 334; [2019] QCA 229, cited / Condo v Nguyen [2015] QCA 64, cited / Cook's Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd (2009) 254 ALR 661; [2009] QCA 75, applied / DL v The Queen (2018) 266 CLR 1; [2018] HCA 26, cited / Greenslade v Hiew [2022] WASCA 47, cited / Karabagias v Katopodis [2022] VSCA 191, cited / Kleeman v The Star Entertainment Group Limited [2022] QCA 119, applied / Stone v Copperform Pty Ltd [2002] 1 Qd R 106; [2001] QCA 7, cited / West v Secure Funding Pty Ltd [2020] QCA 296, cited
COUNSEL: The first applicant appeared on his own behalf and on behalf of the second applicant / S W Trewavas for the respondents
SOLICITORS: The first applicant appeared on his own behalf and on behalf of the second applicant / Aitken Whyte Lawyers for the respondents
Background
The proceedings were commenced on 4 October 2022. The statement of claim alleges that the first applicant (Mr Clayton) breached his duties as a director of Streamline Pro Pty Ltd and otherwise acted improperly from January 2019 or from February 2020 to denude it of its business and for that business to be taken over and operated by the second applicant (TK Global). Mr Clayton is the sole director and shareholder of TK Global.
It appears that –On 2 August 2023 Justice Burns made an order requiring the applicants to disclose certain documents.On 18 September 2023 the respondents filed an application for judgment under r 374 based on the applicants’ failure or refusal to comply with, inter alia, the order of 2 August 2023.The respondents assert there were other instances of procedural non-compliance by the applicants, but it is unnecessary to further consider them.On 30 October 2023 Justice Wilson made an order that the applicants file and serve an affidavit deposing in effect as to which relevant document had never existed, or the circumstances in which they had ceased to exist or passed out of the applicants’ possession or control.It seems that this was not complied with.
On 7 March 2024 the respondents’ application for default judgment came back on before Bradley J who made the following declarations and orders the subject of the appeal, namely –
“1.Pursuant to r. 374 of the Uniform Civil Procedure Rules 1999 (Qld), judgment is entered for the [respondents] against the First and Second [applicants] as follows:
It is declared that the First [applicant] contravened s. 181(1) of the Corporations Act 2001 (Cth) by, between 24 January 2019 and 24 February 2020, transferring the assets of the Second [respondent] to the Second [applicant] for no consideration.
It is declared that the Second [applicant] was involved in the First [applicant’s] contravention of s. 181(1) of the Corporations Act 2001 (Cth) and therefore contravened s. 181(2) of the Corporations Act 2001 (Cth).
It is declared that the First [applicant] contravened his fiduciary duties to the Second [respondent] as a director by transferring the assets as stated in order 1 (a)
The First and Second [applicants] pay the Second [respondent] an amount for damages, or alternatively equitable compensation, or alternatively a compensation order pursuant to s. 1317H of the Corporations Act 2001 (Cth), in an amount to be assessed on a date to be fixed (Assessment Hearing), following which final judgment may be entered with respect to either of those measures at the election of the Second [respondent].”
The assessment of compensation took place before Justice Callaghan who, on 22 April 2025, entered judgment against the applicants for a total of $707,484.49 plus costs. None of that has been paid.
The affidavit material relied on by the respondents1 show that all of these steps took place on notice to the applicants by their then solicitors, though no appearance was made for the applicants on the hearings before Justice Bradley or Justice Callaghan.
Notice of Appeal
On 21 August 2025, the applicants filed their Notice of Appeal. The appeal is against the whole of Bradley J’s order made on 7 March 2024 but not against the judgment of Callaghan J. That said one of the orders sought on appeal is the setting aside of the judgment of Callaghan J.
An application to extend time for filing that notice was filed. No affidavit material was filed in support of it and there has been no hearing of that application to date.
The sole ground of appeal is that Bradley J erred in law by failing to give adequate reasons for exercising the discretion to give judgment under rule 374 of the Uniform Civil Procedure Rules 1999 (Qld).
The applicants were required to file their outline on the appeal by 9 October (that being extended by consent from the original date of 2 October 2025) but have not done so.
The Stay Application
The application for a stay was made on 22 September 2025. Directions were made on 8 October 2025 which required the applicants to file and serve their material including an outline of submissions by 4 pm on 16 October and also to file a notice of party acting in person with their address for service by 4 pm on 8 October 2025. A notification has been given by the second applicant only (albeit late). The time for the applicants to file and serve their material and submissions was extended to 10 am on 20 October 2025 but they were not served on the respondents until the morning of 21 October 2025.2
While not raised as a ground of appeal, the applicants’ outline of submissions now filed in support of this application contends that there was a denial of procedural fairness by reason of the applicants not receiving adequate notice of the hearing and their former legal representatives failing to appear.
The affidavit filed in support by Mr Clayton –swears that his solicitors (at some point) advised him that the “matter was ‘finalised’ and that no further action would be required unless I was contacted again”: at [9]. I interpret the ‘matter’ to mean the proceedings.does not say when he became aware of the orders of Bradley J save to say after becoming aware he “immediately obtained new legal representation and filed an appeal to have the judgement set aside”: at [13] This suggests he was not aware of the judgment until perhaps early to mid-August 2025.finally swears that prior to that judgment “I had fully complied with all disclosure requests made by the [respondents’] lawyers…”: at [8].
Other Processes
The respondents served a statutory demand dated 28 July 2025 on TK Global. An application was made to set that aside, which was filed on 21 August 2025. It has been adjourned to after the disposal of the present application for a stay.
A bankruptcy notice dated 30 July 2025 was served on Mr Clayton seemingly on 11 August 2025. He has applied in the Federal Court to have the time for compliance with it extended to 7 days after this Court determines the appeal proceedings and for the notice to be set aside. That application has not yet been determined.
Late yesterday the registry received an email from Mr Clayton advising that he had filed (but it had not as yet been accepted) his own debtor’s petition. He sought an adjournment of this application for a stay until his position was clarified. I do not see the utility in doing so. The application by the second applicant for a stay remains and in any event the overall position is better clarified by deciding this application as a whole.
Jurisdiction
The respondents contend that, in circumstances where the notice of appeal is out of time and an extension of time has not yet been granted, this Court has no jurisdiction to grant a stay pursuant to r 761(2) as, there is presently no appeal on foot.3
I do not accept that submission. There is a distinction between an appeal which only lies if leave is granted (such as under s 118(3) of the District Court of Queensland Act 1967 (Qld)) and one for which no leave to appeal is required. The former has been held not to be a decision ‘subject to an appeal’ unless and until that leave is granted: Stone v Copperform Pty Ltd [2002] 1 Qd R 106 at 107. The same cannot be said of an appeal for which leave is not required but filed out of time. It is not a nullity and there is no reason to read the language of r 761(2) which refers to “a decision subject to an appeal” as not including one where the Notice of Appeal has been filed late.
In any event the discussion is an arid one. The Court retains its inherent jurisdiction to consider and grant a stay: see West v Secure Funding Pty Ltd [2020] QCA 296 at [6].
Legal Principles
The applicable principles are well established.4 It is incumbent on the applicant to establish that this is an appropriate case for a stay. The factors which normally weigh upon the exercise of that discretion are:whether there is an arguable case on the appeal, carrying out a preliminary assessment of the applicants’ prospects of success;whether a refusal of the stay would render the appeal right nugatory;any prejudice to the applicants and competing prejudice to the respondent;the entitlement of the successful party in litigation to the fruits of its judgment; andwhat orders might ultimately be made and whether a stay is required to ensure that those orders are fully effective.
I shall deal with these issues briefly under a number of headings below.
Prospects of success
The Absence of Reasons
Non-appearance of legal representative
The applicants argue that they had no opportunity to defend or present submissions before judgment was entered.7
That is not made out.Mr Clayton deposes that the applicants were represented by solicitors at all relevant times.8The affidavit of Mr Rieck, the solicitor for the respondents and its exhibits, filed 21 October 2025 shows that notice of the application which came before Bradley J was given to those representing the applicants.
Nevertheless, the non-appearance of the applicants’ solicitors and the troubling circumstance sworn to by Mr Clayton that they did not inform him the matter had been listed9 and indeed misled him as to the status of the proceedings10 may support an application to have the judgment set aside. I should record that there is no material from the solicitors themselves and nothing in these reasons should be read as indicating that they have in any way acted improperly. That remains to be examined.
The Court has an inherent power to set aside an order occasioned by a miscarriage of justice.11 This may arise where a person suffers “an adverse order in circumstances where his or her failure to appear is adequately explained unless it also appears that no different result would be reached on a re-hearing or that a re-hearing would work an irremediable injustice to the other side”.12
Again, the applicants have not identified what might have been said on their behalf to suggest that a different result would have been reached. The applicants have not identified in their written submissions any defence they would have advanced that could have altered the outcome below.
Delay
The notice of appeal was filed more than 1.5 years after judgment was entered.
An unexplained delay in applying to the Court may militate against the exercise of its inherent jurisdiction.13
Mr Clayton deposed that upon becoming aware of the judgment, he “immediately obtained new legal representation and filed an appeal to have the judgment set aside”.14
The precise timing of this is not clear. What does appear is that no affidavit was provided to support the application for an extension of time, no stay was sought for some 2 months and the applicants have not prosecuted the appeal or this application complying with the time frames set for them.
As Keane JA observed in Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd,15 “courts should not be disposed to delay the enforcement of court orders”.
Prejudice
The applicants submit that “[i]f bankruptcy or winding-up enforcement proceeds before determination of the appeal, [they] will suffer irreversible consequences, including loss of control over assets and livelihood”.16
There is no evidence that the applicants could not, if they chose to, obtain the funds sufficient to pay the judgment debt. However, a submission is made that “the Applicant is self-represented and of limited financial capacity”: Applicants’ Outline of Submissions at [20]. No details are provided. As mentioned, Mr Clayton has advised that he has presented his own debtor’s petition.
In any case, neither liquidation nor bankruptcy renders an appeal nugatory. They can be prospected by the liquidators or trustees and there is no evidence that there would not be funds available to them to do so.
As to prejudice other than that, the likelihood that refusal of a stay might lead to the liquidation of the second applicant should not weigh heavily in the balance. It is a corporate entity and whatever its rights they can be held and dealt with by a liquidator: Cook’s Constructions Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453 at [18].
The possibility of Mr Clayton becoming bankrupt is different. It is true that the appeal can be pursued by his trustee but even as to that Holmes JA in Condo v Nguyen [2015] QCA 64 described the possible bankruptcy of the applicant as “a powerful consideration in the balance of convenience that bankruptcy is likely to diminish the prospects of the appeal proceeding considerably”. Further, bankruptcy has broader implications than merely its impact on the appeal and both of these considerations need to be taken into account.
A similar issue arose for consideration in Bresam Investments Pty Ltd v Shmee Pty Ltd [2008] VSCA 251. There Dodds-Streeton JA (Kellam JA agreeing) said –
“[48]Although, as recognised in Li & Anor v The Herald & Weekly Times Ltd & Anor, the effect of a bankruptcy order on the prosecution of an appeal may, in a particular case, render an appeal nugatory and constitute special circumstances, a threat of liquidation or bankruptcy is not a decisive factor in every case. The weight to be accorded to it may vary.
[49]The bankruptcy or liquidation of the appellants would merely diminish, rather than destroy, the prospects that the appeal will be prosecuted…
[50]Counsel for the appellants submitted that the prospect of bankruptcy was distinguishable, in the present context, from that of liquidation, because:
…
bankruptcy constituted an inexpungable stain upon the status of the individual.
[51]Those submissions are, in my view, unpersuasive.
[52]First, the impact of any adverse effect of bankruptcy on reputation may vary according to the circumstances of the particular case.
[53]Secondly…
[54]Thirdly, if bankruptcy notices were served, it would be open to the individual appellants to seek an extension of time for compliance pending the hearing and determination of the appeal.”
The present case was perhaps stronger in favour of the stay given that a bankruptcy notice has been served. But there is on foot an application in the Federal Court to extend the time for compliance with it until 7 days after this Court deals with the appeal. The ‘prejudice’ to Mr Clayton is in that sense nascent. If the Federal Court did not extend the time for compliance with the notice, and if it is not complied with, then in those different circumstances the balance may better favour the grant of a stay.
That said, this form of prejudice no longer seems to be something Mr Clayton seeks to avoid given he has presented his own debtor’s petition.
The prejudice to the respondents will be that they are kept out of the fruits of their judgment and indeed the interest on that is likely to continue to run so that the outstanding amount will be increasing. Nothing is offered by the applicants to meet this prejudice.
The applicants express a willingness to comply with any “reasonable timetable” for progressing the appeal and, “if required, an undertaking not to dispose of assets pending determination”: Applicants’ Outline of Submissions at [19]. In the absence of this being properly formulated and details of their current asset position provided, this is of limited value.
The asserted prejudice to the applicants does not constitute a proper basis to outweigh the consideration that judgments of the Trial Division should not be treated as merely provisional, and that a successful party in litigation is entitled to the fruits of its judgment.17
Disposition
The application made by the applicants to adjourn the application for stay is refused.
The application for a stay is refused.
The applicants are to pay the respondents’ costs of and incidental to the application for a stay including the costs reserved on 8 and 16 October 2025 fixed in the amount of $22,000.
Affidavit of L J Rieck (sworn 21 October 2025). ↩
Affidavit of L J Rieck (sworn 21 October 2025) at [5]-[7]. ↩
Respondents’ outline of submissions at [12], citing West v Secure Funding Pty Ltd [2020] QCA 296 at [6]. ↩
Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453 at [13]-[15]; Chapel of Angels Pty Ltd v Hennessy Building Pty Ltd [2019] QCA 229. ↩
DL v The Queen (2018) 266 CLR 1, 12-13 [32]–[33]; Built Qld Pty Limited v Pro-Invest Australian Hospitality Opportunity (ST) Pty Ltd [2022] QCA 266 at [103]–[104]; Barnes v The State of New South Wales [2017] NSWCA 254 at [21]–[22]; Karabagias v Katopodis [2022] VSCA 191 at [10]–[14]; Greenslade v Hiew [2022] WASCA 47 at [42]–[49]. ↩
Respondents’ Outline of Submissions at [33]-[34]. ↩
Applicants’ Outline of Submissions at [14]. ↩
Affidavit of B J Clayton (sworn 20 October 2025) at [5]. ↩
Affidavit of B J Clayton (sworn 20 October 2025) at [6]. ↩
Affidavit of B J Clayton (sworn 20 October 2025) at [9]. ↩
Kleeman v The Star Entertainment Group Limited [2022] QCA 119 at [47].
Clayton
Ebborn [2025] QCA 199
(2018) 266 CLR 1
(2000) 203 CLR 172
(2009) 254 ALR 661
The application to adjourn the stay application was refused. The stay application was refused. The applicants were ordered to pay the respondents' costs of and incidental to the stay application, including reserved costs fixed at $22,000.
Kleeman v The Star Entertainment Group Limited at [47], citing Allesch v Maunz (2000) 203 CLR 172, 182-183 [28] (Gaudron, McHugh, Gummow and Hayne JJ). ↩
See generally, Kleeman v The Star Entertainment Group Limited at [59]. ↩
Affidavit of B J Clayton (sworn 20 October 2025) at [13]. ↩
[2008] 2 Qd R 453, 445 [12]. ↩
Applicants’ Outline of Submissions at [17]. ↩
Cook’s Construction Pty Ltd v Stork Food Systems Australasia Pty Ltd [2008] 2 Qd R 453. ↩