By Summons filed on 27 October 2021, the plaintiff, Godfrey DeMarco appeals from a decision that the NCAT Appeal Panel made against him in favour of the defendants on 28 September 2021: DeMarco v Macey (No 2) [2021] NSWCATAP 354. The plaintiff is a builder and the dispute concerned a project he was involved in for the defendants.
On 18 March 2022 as duty judge I heard an urgent notice of motion seeking a stay and a restraint from enforcing judgment. On that day I made orders granting a short stay and these are my reasons for making those orders.
[2]
Background
That appeal is listed to be heard in this Court on 7 April 2022 with a 1-day estimate. The Summons is detailed and clear as to the grounds of appeal and written submissions have been filed by both sides. Counsel have informed me, and I accept, that the appeal is ready to run on that day.
On 13 December 2021, the plaintiff filed a notice of motion seeking a stay of the Tribunal's orders until the appeal is determined, and an order under the Civil Procedure Act 2005 (NSW) restraining the defendants from enforcing the judgment entered by the defendants in the District Court on 17 November 2021 that resulted from the Appeal Panel's decision against him.
In February 2022, at a directions hearing before the Registrar, that motion was stood over for hearing concurrently with the appeal, no doubt as a matter of pragmatics and costs saving.
DeMarco v Macey [2022] NSWSC 327 | Case summary | Zoe
As events transpired, the plaintiff was served with a letter from the Department of Fair Trading on 17 March 2022 to the effect that unless he provided the Department with either an order staying the Appeal Panel decision, a court instalment order, a private alternative arrangement or full compliance by 21 March 2022, the Department would suspend his builders license.
The plaintiff also became aware on that day that the defendants had taken out a writ for the levy of property in the District Court.
Urgent orders were sought to protect the position in the form of the notice of motion that came before me as duty judge on 18 March 2022.
Counsel provided helpful written submissions and a chronology. Focused, sensible and helpful oral submissions were provided by both Counsel, Mr Lambert for the plaintiff, and Mr Mobellan for the defendant.
[3]
Relevant principles
The relevant principles were succinctly set out in Mr Lambert's written submissions at paragraphs 19 - 24 and 26 - 28, as follows:
It has been said that the power to order a stay or restrain enforcement is incidental to the right of appeal and derives from the inherent power of the court to do whatever is necessary to prevent injustice in relation to proceedings in the court. [1]
In order to justify a stay or in the alternate an order pursuant to s. 135(1) of the Civil Procedure Act 2005, an applicant must identify the circumstances that warrant a departure from the general rule that a "successful party is prima facie entitled to the fruits of his judgment". [2]
As was said by Wigney J in Dyer v Chrysanthou [3] "Two questions must be considered: first, is there an arguable point on the proposed appeal: Nolten v Groeneveld Australia Pty Ltd [2011] FCA 1494 (Nolten) at [24] or some "rational prospect of success'' in relation to any of the grounds of appeal: Burns v AMP Finance Ltd [2005] FCA 761 at [5]; and second, does the balance of convenience favour the grant of a stay: Nolten at [24], [46]."
Nonetheless an applicant does not have to show that the circumstances relied on to support the stay of a judgment can properly be described as "special" or "exceptional". [4]
The absence of arguable grounds of appeal is likely to be a determinative consideration against a stay application. [5]
But an appellant's ability to identify reasonably arguable grounds of appeal is highly relevant to the exercise of the stay discretion. [6]
The court must "first consider the threshold question of whether there is a ''real risk that [the appellant] will suffer prejudice or damage, if a stay is not granted, which will not be redressed by a successful appeal" and, if this pre-condition is established, the Court will then consider the balance of convenience and the competing rights of the parties". [7]
Given the Defendants are under "financial strain" there is a real risk that if a stay is not granted and the Appeal Panel's Judgment is enforced then should the Plaintiff succeed on the Appeal the subject matter of the proceedings might well be dissipated by the Defendants and lost and the Appeal rendered nugatory.
In this regard, the exercise of the stay power is particularly appropriate where it is necessary to maintain an existing state of affairs in order to preserve the subject matter of the proceedings [8] and where money paid to a respondent to satisfy the judgment may be irrecoverable if the Appeal is successful. [9]
[4]
Argument
Mr Lambert argued that the plaintiff's written submissions filed in support of the appeal and his response submissions, and in particular the issue of apprehended bias by the original tribunal member, (and so procedural unfairness) underpinned real prospects of success on the pending appeal.
In support of the stay he argued that if a stay was not granted, there would be irreparable damage, because the plaintiff's builders licence would be lost and he would be deprived of his only source of income. The evidence indicated that the plaintiff is in the middle of a building project in Paddington. The project would have to immediately stop. His income would cease, adding to difficulties in funding the appeal proceedings and maintaining income to ensure an available sum to pay the judgment debt if his appeal fails.
Mr Lambert argued these concerns outweigh any potential prejudice to the defendants. I agree.
There was a suggestion in submissions that the defendants were in financial need, however, there was no evidence of specific financial hardship. In any event, the overarching principle is that a successful party is entitled to the fruits of their victory. Clearly there has been some delay awaiting the hearing of the appeal to this Court. Evidence was tendered that both the plaintiff and the defendants own property, although no detail was provided as to encumbrances on any of those properties or their gross or net value. It was submitted, and I agree, that the question of whether either side could pay the judgment money and/or costs is probably neutral.
Mr Lambert sought a stay until the appeal is finally determined. I raised with counsel that I thought that was too long a period and probably not necessary to protect the current position, given the hearing date is under three weeks away.
Once I articulated that I was contemplating a stay to the day after the hearing of the appeal, Mr Mobellan candidly and sensibly indicated he could raise little opposition to that course.
Mr Mobellan raised the possibility of a stay on terms that the plaintiff, in an indication of good faith, pay into the Court the amount assessed by the Appeal Panel as due to the defendants. I considered that step probably unnecessary and anyway one that did not give the defendants the fruits of their victory. In the absence of a suggestion that the plaintiff had no prospect of satisfying the verdict, this was not a condition I thought was useful or necessary to impose at this stage.
[5]
Decision
Having read the Summons and the submissions on the appeal, I take the view that there is at least an arguable basis and some rational prospects of success for the appeal.
Once the judge hearing the appeal has heard the evidence and argument on 7 April 2022, he or she will have a much better idea of the merits of the appeal and how the matter is likely to be decided, and so the merits of any further stay application and any conditions that should be imposed.
The balance of convenience favours the grant of the short stay that I propose. True it is that the defendants will be kept from the fruits of their victory a little longer, but the effect upon the plaintiff if the stay is not granted is that he will not be able to work, and thus will earn no income. No doubt, damage to projects he is engaged in and damage to his reputation would quickly follow. These matters are irreparable.
[6]
Orders
I make the following orders:
1. The Court grants leave for the notice of motion filed on 18 March 2022 to be returnable instanter.
2. The time for service of this notice of motion is abridged to 18 March 2022.
3. On account of the plaintiff giving the usual undertaking as to damages:
1. Pursuant to r.50.7 of the Uniform Civil Procedure Rules 2005 (NSW) the orders made by the Appeal Panel of the Civil and Administrative Tribunal of NSW on 28 September 2021 and any related orders as to costs are stayed until 8 April 2022
2. Pursuant to s.135(1) of the Civil Procedure Act 2005 (NSW) the Defendants are restrained from enforcing the judgment entered in the District Court on 17 November 2021 pursuant to the above orders of the Appeal Panel of the Civil and Administrative Tribunal of NSW of 28 September 2021 until 8 April 2022.
1. Costs of this motion are costs in the cause.
2. These orders are to be entered forthwith.
[7]
Endnotes
Tolj v O'Connor (1988) 13 ACLR 653; 6 ACLC 1106; Hunter v Corporate Affairs Commission (1988) 12 NSWLR 178; 13 ACLR 250; Dwyer v National Companies & Securities Commission (1988) 15 NSWLR 285; (1988) 14 ACLR 595;
Kalafair Pty Limited v Digitec (Australia) Pty Limited (2002) 55 NSWLR 737 at [28], Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 at [7]
(No 4) [2022] FCA 51 at [9]
Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685; 10 ACLR 42; Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65; 137 ALR 498; 35 IPR 193;
Chen v Lym International Pty Ltd [2009] NSWCA 12 at [15] per Beazley JA; Trad v Harbour Radio Pty Ltd [2010] NSWCA 41 at [48] per Tobias JA; Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at 695; 10 ACLR 42.
Andrews v John Fairfax & Sons Ltd [1979] 2 NSWLR 184; Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at [695]; 10 ACLR 42
Yolarno Pty Ltd v Shandong Delisi Food Co Ltd [2022] NSWCA 30 per Macfarlan JA at [4]
Paringa Mining and Exploration Co Plc v North Flinders Mines Ltd (No 2) (1988) 165 CLR 452; 81 ALR 609; Kalifair Pty Ltd v Digi-Tech (Aust) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383;
TCN Channel 9 v Antoniadis (No 2) (1999) 48 NSWLR 381; [1999] NSWCA 104; Linotype-Hill Finance Ltd v Baker (Practice Note) [1992] 4 All ER 887; [1993] 1 WLR 321; Australian Federation of Consumer Organisations Incorporated v Tobacco Institute of Australia Ltd (No 2) (1991) 30 FCR 548; ATPR 41-138; Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103;
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Decision last updated: 24 March 2022