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[2014] NSWSC 472
Supreme Court of NSW
2014-04-17
Harrison J, Stevenson J
Original judgment source is linked above.
Judgment 1HIS HONOUR: By notice of motion filed on 25 March 2014, Land Enviro Corp Pty Ltd, Sam Zdrilic, Amy Zdrilic and Amy Holdings Pty Ltd (the defendants) seek the following orders:
Background 3The judgment debt that is the subject of these proceedings was entered on 14 March 2013 and arises out of a costs order made in proceedings commenced on 26 March 2007, which were ultimately heard and determined by Stevenson J. Orders were sought in those proceedings to set aside a consent judgment dated 1 September 2004 dismissing earlier proceedings in the Equity Division in which Land Enviro Corp Pty Limited was the sole plaintiff. By an amended statement of claim filed on 11 December 2002, Mr Hickie had been joined to those proceedings, but they were dismissed by consent on 1 September 2004. The plaintiff sought to re-litigate those proceedings. 4Stevenson J heard the matter between 6 February 2012 and 16 March 2012, over more than 25 days of hearing. The case against the plaintiffs alleged that Robert Renshall made actionable representations to the defendants. Stevenson J found that the alleged representations had either not been made or were not actionable if they had been. It was not alleged that Mr Hickie made any of the representations, either on his own behalf or on behalf of Vocifa. His Honour referred at [985] to the fact that the defendants' counsel had conceded as much. His Honour disposed of the case against the plaintiffs at [987] and [997] - [998] in these terms: "[987] As to particular (c), Mr Jucovic accepted that a representation by Mr Renshall of his asserted authority to negotiate on behalf of Mr Hickie would not be sufficient to establish agency. Any such representation would have to come, expressly or implicitly, from Mr Hickie: Freeman and Lockyer v Buckhurst Park Properties (Mangal) Limited [1964] 2 QB 480 at 503: Pacific Carriers Limited v BNP Paribas (2004) 218 CLR 451 at [36]. ... [997] In those circumstances, I cannot see how Mr Zdrilic could reasonably have inferred that the representations allegedly made to him by Mr Renshall concerning the availability of funds (as opposed to negotiation of the terms of the Heads of Agreement) were made on behalf of Mr Hickie. [998] For that reason, my opinion is that HTT and Mr Renshall were not acting as Mr Hickie's agent for relevant purposes, that is to say for the purposes of making the representations as to the availability of funds." See Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2012] NSWSC 382 5His Honour published his reasons for judgment on 20 April 2012, dismissing the defendants' claims pleaded in what by then had become their third amended statement of claim. No allegation was made in those proceedings that Mr Hickie or Vocifa Pty Ltd (the plaintiffs) had made any of the pleaded representations. The case against them was based upon allegations that those who made the representations were the plaintiffs' agents, but that allegation was dismissed. 6In a separate judgment published by Stevenson J on 7 May 2012, his Honour ordered that the present defendants pay the costs of the present plaintiffs on the ordinary basis up to 1 September 2011 and on an indemnity basis thereafter. The plaintiffs in due course registered a judgment on 14 March 2013 for the assessed costs in the sum of $358,588.89. No challenge to that judgment was ever made. 7However, on 18 May 2012 the defendants served a notice of intention to appeal against the judgment of Stevenson J. By notice of motion filed on 8 November 2012 in the Court of Appeal, the defendants sought an order pursuant to UCPR 51.9(1)(b) extending the time for filing and serving a notice of appeal. 8Other than serving the notice of intention to appeal, the defendants did not advise the plaintiffs or otherwise indicate to them that they proposed to make an application for leave to appeal against his Honour's judgment out of time until they served their application to extend time to appeal. That application by the defendants was heard by Allsop P on 18 and 19 February 2013, and dismissed by orders made on 21 February 2013. His Honour ordered that the defendants pay the plaintiffs' costs of the application. On 6 March 2013, the defendants filed an application pursuant to s 46(4) of the Supreme Court Act 1970, seeking to discharge Allsop P's orders together with an order extending the time within which to file and serve their notice of appeal. 9On 12 April 2013, the defendants filed a notice of motion in the Common Law Division seeking an order that the judgment entered on 14 March 2013 be stayed until the proceedings in the Court of Appeal had been determined. On 10 May 2013, McCallum J granted a stay of enforcement of the costs judgment until 3 June 2013, conditional upon the defendants paying the sum of $15,000 into Court by way of security for the plaintiffs' costs of the hearing of the defendants' s 46(4) application in the Court of Appeal. The defendants paid the sum of $15,000 into Court on 28 May 2013. 10On 3 June 2013, McCallum J extended the stay up to and including 18 September 2013, which was the date upon which the s 46(4) application was due to be heard. On 4 October 2013, the plaintiffs undertook not to take any steps to enforce the costs judgment until the expiration of the period of 21 days after the Court of Appeal delivered judgment on the s 46(4) application. In the course of her judgment published on 6 June 2013, her Honour said this: "[40] In those circumstances, I felt compelled to determine the application for a stay on the premise that it was not possible for me to form a judgment as to the applicants' prospects of success in varying the order of Allsop P. I accordingly approached the application on the basis that there may well be very limited prospects of success but, conversely, that there may be some respectable point nestling within the complex and extensive material which will be put before the Court of Appeal. [41] Against those considerations, I concluded that the most important factors in favour of granting a stay were the fact that, if the stay were not granted, that would in all probability stymie the application under s 46(4) of the Supreme Court Act; the fact that that application is ready for hearing and has a hearing date; the relatively narrow scope of that application and the impossibility of excluding the conclusion that the application has reasonable prospects of success. [42] The most important factors against granting the stay were, in my consideration, the need to acknowledge that Mr Hickie and Vocifa are entitled to the benefit not only of the judgments of Stevenson J but of the costs judgment, which is not the subject of any appeal; the apparent risk that the applicants will not be able to satisfy that judgment and the plain prejudice of allowing further costs to be incurred in that circumstance. [43] Weighing those competing considerations, I formed the view that there was an appropriate basis for granting a stay that would be fair to all parties if the applicants were able to provide security in a modest sum to meet Mr Hickie's legal costs of the hearing of the s 46(4) application in the Court of Appeal. For those reasons, I made the orders set out above." See Hickie v Land Enviro Corp Pty Ltd [2013] NSWSC 706. 11On 4 March 2014, the Court of Appeal dismissed the defendants' s 46(4) application insofar as it related to the plaintiffs and ordered the defendants to pay the costs. (In an otherwise comprehensive appeal against the decision of Stevenson J in the Court of Appeal, the defendants had only alleged against the plaintiffs that his Honour had erred in not finding that Mr Renshall or his associates were the plaintiffs' agents). Basten JA dealt with the disposition of the application insofar as it related to the plaintiffs as follows: "[6] Secondly, the third respondent (Mr David Hickie), and the sixth respondent (Vocifa Pty Ltd) had common representation and may be identified as the "Hickie interests". As will be noted below, the primary case for the applicants was that they had suffered loss and damage as a result of misrepresentations for which Mr Renshall (the first respondent) was primarily liable. In the original pleadings, the claim against the Hickie interests was based on Mr Renshall acting as their agent. However, the trial judge found that there was no evidential basis for the agency: at [997]. Nothing was said in the course of the proceedings in this Court to cast doubt on that finding. Although part of the relief claimed by the applicants was the setting aside of the settlement of the 2001 proceedings, to which the Hickie interests were party, it was not submitted that they were a necessary party on that basis. [7] In brief submissions to this Court, the Hickie interests noted that they had incurred significant costs which it appeared they would be unlikely to recover, even if the application were to be dismissed, and that factor, combined with the absence of any arguable case in respect of their liability, meant that the proceedings for review should be dismissed with respect to them. That submission should be accepted." See Land Enviro Corp Pty Ltd v HTT Huntley Heritage Pty Ltd [2014] NSWCA 34. 12On 25 March 2014, the defendants filed a notice of motion seeking a further stay of the costs judgment and an application for special leave to appeal from the judgment of the Court of Appeal to the High Court. It is convenient to record the terms of the grounds of appeal that the defendants seek to agitate in that Court. They are as follows: "3. The Court erred in not granting an extension of time within which to appeal against the third and sixth respondents, being necessary parties to the appeal, because: (a) by the appeal, the applicant's seek to set aside agreements, including the HOA and the Deed, to which all respondents are a party; (b) the consequence of the judgment is that the agreements might be set aside against sine respondents but left active in relation to others. 4. The Court erred in finding that there was no arguable case in respect of the Hickie interests, apparently on the basis that the trial judge found that there was no evidential basis that the Second Respondent was acting as agent for the Hickie interests in engaging in misleading or deceptive conduct which induced the entry into the relevant agreements, notwithstanding that the trial judge found that: (a) there was a factual basis for the agency in respect of the negotiation of those same agreements; and (b) the misleading representations were made during the course of negotiations. 5. The Court erred in not applying the findings made in respect of the HTT respondents, those findings being that the applicants have a reasonably arguable case to succeed on appeal, with the delay being short and no material prejudice. 6. The Court made the following erroneous findings which gave rise to its ultimate error: (a) finding that the Hickie respondents had incurred significant costs in circumstances where those costs were actually met by HTT [Judgment 7]; (b) dividing the respondents erroneously into two groups (Renshall interests) and then delivering a different decision for to each group; (c) finding that HTT (first and main respondent) as being part of 'Renshall's interests' group [Judgment 8]; (d) finding that the misrepresentations were made by Mr Renshall instead of HTT and Mr Renshall [Judgment 6]." 13The defendants have refused to consent to the release to the plaintiffs of the $15,000 paid into Court in accordance with the order made by McCallum J on 10 May 2013. The full amount of the costs judgment remains outstanding. 14The plaintiffs have commenced the present proceedings with a view to enforcing the costs judgment. The plaintiffs served statutory demands upon Amy Holdings and Land Enviro Corp on 18 March 2013. Those companies moved on 8 April 2013 to set aside the statutory demands upon Mr Zdrilic's deposition that there was "a genuine dispute between [his two companies] and the defendants about the existence of a debt [the costs judgment] to which the demand(s) relates." Those proceedings are now listed for hearing on 28 April 2014. It is not in dispute that the two companies are insolvent. 15On 5 April 2013 Sam Zdrilic and Amy Zdrilic were each served with bankruptcy notices. On 17 March 2013 each of them made an application to the Federal Court of Australia to set the notices aside. District Registrar Wall dismissed those applications on 18 March 2014. Sam Zdrilic and Amy Zdrilic filed an application for review of that decision in the Federal Court on 27 March 2014, which is also listed for hearing on 28 April 2014. The time for compliance with the bankruptcy notices has now expired.
Applicable principles 16UCPR 51.44 provides as follows: "51.44 Appeal proceedings do not operate as stay unless Court or court below directs (1) Subject to the filing of a relevant originating process, the Court may order that the decision below or the proceedings under the decision be stayed. (2) The filing of a relevant originating process does not: (a) operate as a stay of proceedings under the decision below, or (b) invalidate any intermediate act or proceedings." 17An appellant does not have an automatic right to a stay of execution pending an appeal. The starting point is that a respondent to an application for such a stay ought not to be deprived of the fruits of its victory. It is relevant in an appropriate case to consider whether a stay is necessary to maintain an existing state of affairs in order to preserve the subject matter of the proceedings. An applicant for a stay must generally identify circumstances that warrant a departure from the general rule that the judgment below should be presumed to be correct and is appropriate to be enforced. An appellant's ability to identify reasonably arguable grounds of appeal is relevant to the exercise of the discretion to grant a stay. The existence of arguable grounds of appeal is not necessarily sufficient to justify the grant of a stay, but their absence is likely to be a determinative consideration against the grant of a stay. 18In Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 at 693 - 695 the Court set out the principles governing the exercise of the discretion to grant a stay which included the following: "In our opinion it is not necessary for the grant of a stay that special or exceptional circumstances should be made out. It is sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of discretion in his favour. ... There are other principles to be kept in mind. The onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties...The mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears...The Court has a discretion whether or not to grant the stay and, if so, as to the terms that would be fair. In the exercise of its discretion, the Court will weigh considerations such as the balance of convenience and the competing rights of the parties before it...Sometimes as a condition of the grant of a stay, where funds are available, a Court will impose on the applicant the payment of the whole, or part, to the judgment creditor...Even where no order is made for the payment of part of a verdict, it is not at all unusual for the Court, in the exercise of its discretion, to grant a stay on terms that the appellant give to the judgment creditor security in terms defined by the Court as appropriate to the fair adjustment of the rights of the parties..." 19These principles have more recently been considered in Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 per McColl JA at [18] - [20]: [18] The overriding principle in an application for a stay is to ask what the interests of justice require: New South Wales Bar Association v Stevens [2003] NSWCA 95 at [83]... [19] The detailed principles concerning the grant of a stay are set out in Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685 at 694: a. Where there is a risk that an appeal will prove abortive if the appellant succeeds and a stay is not granted, the Court will normally exercise its discretion in favour of granting a stay; b. the onus is upon the applicant to demonstrate a proper basis for a stay; c. it is a matter of discretion whether the Court grants a stay and if so as to the terms which would be fair as part of the granting of a stay; d. what is important in considering whether or not a stay ought be granted is the balance of convenience and the competing rights of the parties before it; e. it is not necessary that special or exceptional circumstances should be made out; it is sufficient for the applicant to demonstrate a reason or an appropriate case to warrant the exercise of discretion in its favour. [20] Since a stay will prevent the judgments being enforced while the appeal is pending, the Court should endeavour to preserve the status quo by protecting the judgment creditor from the risk of loss...". 20See also Carr trading as Forshaws Neill v Swart; Lawcover Pty Ltd v Swart [2007] NSWCA 135.
The plaintiffs' submissions 21The plaintiffs relied generally upon these principles. They also contended that in any event an application for a stay pending an application for special leave to appeal to the High Court fell into a special category. The threshold question is whether there is any reasonable prospect that the High Court will give serious consideration to a special leave application. The plaintiffs submitted in such circumstances that the defendants confronted a much higher onus than persuading the Court that if special leave is granted they are likely to succeed on the appeal. Section 35A of the Judiciary Act 1903 is relevant. It provides as follows: "35A In considering whether to grant an application for special leave to appeal to the High Court under this Act or under any other Act, the High Court may have regard to any matters that it considers relevant but shall have regard to: (a) whether the proceedings in which the judgment to which the application relates was pronounced involve a question of law: (i) that is of public importance, whether because of its general application or otherwise; or (ii) in respect of which a decision of the High Court, as the final appellate court, is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law; and (b) whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application relates." 22An example of a case in which a stay was sought pending an application for special leave is Daebo International Shipping Co Ltd v The Ship Go Star (No 3) [2012] FCA 1475. McKerracher J identified the relevant principles as follows: "[7] The principles concerning the grant of a stay pending an application for special leave to the High Court are well established and are discussed below. I have concluded that this is an exceptional case which does warrant the granting of a stay. Both parties are foreign with no assets in Australia. The Owners were brought into the Australian admiralty jurisdiction by reason only of the Ship berthing at Albany in Western Australia and being arrested. If funds presently on account (which the Owners were required to pay into court to secure the Ship's release) are paid out to Daebo and the Owners were to succeed on the ultimate appeal, they would then have to attempt to pursue recovery of those funds in Korea where Daebo has assets. Those features render the situation rare or exceptional and also weigh heavily in consideration of the balance of convenience. Those factors alone would still not be sufficient to warrant exercise of the rare jurisdiction to stay execution unless there were an argument of some merit which can be seen to have a reasonable prospect of serious consideration on a special leave application. That is quite different from predicting that an appeal, if leave were granted, would be likely to succeed. ... [38] It is common ground that granting a stay of a judgment pending the hearing of an application for special leave to appeal involves the exercise of an extraordinary jurisdiction. It is necessary to consider four issues: Whether there is a substantial prospect that special leave to appeal will be granted; Whether the respondent has failed to take whatever steps necessary to seek a stay from the Court in which the matter is pending (this does not presently arise); Whether the grant of a stay will cause loss to the appellant (this can be considered together with the final issue); and Where the balance of convenience lies. [39] These propositions are outlined by Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681 (at 685)...". 23The plaintiffs contended that the defendants' application for special leave was, in effect, hopeless. It failed conspicuously to conform to any of the considerations to which s 35A refers. No question of law is identified. The matter raises no issue of public importance, nor is it likely to resolve differences of opinions on an identified issue between different courts. The grounds relied upon do not involve any considerations concerning the administration of justice. 24According to the plaintiffs, the defendants' application for a stay brings forward at least the following considerations relevant to the exercise of the Court's discretion. The special leave application is futile as no question of law is involved. The case that the defendants seek to re-agitate against the plaintiffs is in any event incapable of succeeding. Costs incurred by the plaintiffs to date are considerable and the defendants concede that there is no prospect of the plaintiffs recovering their costs from the defendants. The plaintiffs contended that the defendants have not demonstrated sufficient circumstances that would entitle them to an exercise of discretion in their favour. 25Moreover, the balance of convenience clearly favours the plaintiffs. The defendants' case against the plaintiffs has been soundly defeated at every stage. The plaintiffs submitted that they should not be held hostage to the defendants' continuing case against the other parties to the original proceedings.
The defendants' submissions 26The defendants did not appear with the benefit of lawyers but were represented before me by Sam Zdrilic. Mr Zdrilic prepared written submissions and referred me to a very large volume of material entitled "Application for a stay of costs order". I have taken some considerable time to examine both the written submissions and the volume of material in detail. I observe in this context that Mr Zdrilic expressed concern on more than one occasion during the hearing that he held fears that previous judges of this Court, who had decided issues in his cases, may have had insufficient time, as the result of heavy workloads, to give proper or adequate attention to the legal and factual issues confronting them. Mr Zdrilic was not critical of, but sympathetic to, this problem that he perceived was potentially, if not actually, inimical to arriving at the correct result. I was in these circumstances exhorted by Mr Zdrilic to take time to understand the case before me. 27Mr Zdrilic's primary submission was that the plaintiffs have been erroneously and unjustly separated, or treated as separate, from the other parties in the proceedings commenced by him. That led Stevenson J and the Court of Appeal to dispose of the case against the plaintiffs without tying them to the allegedly wrongful conduct of the other original parties. That resulted in the erroneous dismissal of the proceedings against the plaintiffs. 28Mr Zdrilic contended that the Court grouped HTT incorrectly with the Renshall interests. That error "removed" Mr Hickie from HTT's liability and its fraud and wrongdoing. Mr Zdrilic submitted that Mr Renshall and Mr Hickie had similar interests in HTT and were both directors of it at all relevant times. That was the first error. 29Secondly, the "Court erred in finding that there was an agency for Devubo Pty Ltd, but not for Hickie and Vocifa Pty Ltd". 30Thirdly, Mr Zdrilic embraced what was said by Leeming JA in the Court of Appeal at [68] as follows: "[68] There is a larger point, too, turning on the materials that are available on an application such as this. The events the subject of this appeal took place around a decade ago. The trial before the primary judge took some 24 days over approximately six weeks. The applicants and the Renshall interests were both represented by Queen's Counsel. It is unlikely that the applicants (who were plaintiffs at first instance) had commenced and maintained a case that was hopeless. Although it is perfectly possible that the appeal will be dismissed, I find it impossible to conclude that that outcome is inevitable, or close to inevitable, such that there is not a reasonably arguable case on appeal, without reviewing the contemporaneous documentary record in its entirety." 31Fourthly, the Court, presumably Basten JA at [6] in the Court of Appeal, "stated in error that Renshall was primarily liable instead of HTT and Renshall". 32Fifthly, "the Court [of Appeal] erred in finding that in the original pleadings the applicants stated that Renshall was the agent" whereas Mr Zdrilic is at pains to make clear that it was both Mr Renshall and HTT. 33Sixthly, the Court of Appeal "stated in error that settlement on 27 August 2004 was between Zdrilic and Renshall interests instead of HTT and all the respondents with the applicants." 34Seventhly, the "Court [of Appeal] erred in stating that the primary responsibility for the applicants' loss and damage was Renshall instead of HTT and Renshall." 35Eighthly, the "Court [of Appeal] erred in stating that the significant Heads of Agreement of 18 February 2004 was drawn by Zdrilic interests and Renshall interests instead of HTT and Renshall on behalf of HTT." 36Ninthly, the Court of Appeal made a finding that the defendants had made out that they had reasonably arguable prospects of success on appeal. The Court found further that the respondents in that Court had failed to demonstrate that the defendants did not have an arguable case. Mr Zdrilic contended that "the Court [of Appeal] erred in excluding that finding in relation to the Hickie respondents." 37Finally, Mr Zdrilic submitted that the Court of Appeal erred because it did not adequately address his submissions. He gave what were said to be several examples of this phenomenon. 38Mr Zdrilic contended in general support of the present application that "[n]ot only did the [defendants] show an arguable case before the full bench but in fact they have shown that they will win against all the respondents." He submitted that: "On the evidence, the Court has sufficient and strong reasons to extend the stay or stay order 4 of the NSW Court of Appeal judgment dated 4 March 2014. Anything else would be totally unjust and lead to financial ruin of the innocent applicants who presented submissions that were accurate and not rejected by anyone. Not granting the orders would be an incredible miscarriage of justice."
Consideration 39Doing the best I can I am unable to see any basis at all either for a continuation or extension of the stay upon the costs judgment that favours the plaintiffs or for a stay of any of the Court of Appeal's recent orders. 40Mr Zdrilic has argued at length and in detail. He has propounded every conceivable argument in support of his application and then some. He is clearly passionate about what he perceives to have been a fraud practised upon him with devastating financial and emotional consequences. I have no doubt about the sincerity with which he holds to his views concerning what occurred and what he maintains is required to put things right. 41The difficulty for Mr Zdrilic, however, is that he is unable to convert his dissatisfaction with the decisions of Stevenson J or the Court of Appeal into some suitable argument to support the orders that he seeks. In large measure, Mr Zdrilic does no more than protest that the arguments that were rejected by earlier courts should now carry the day. Even putting aside for the sake of the argument that Mr Zdrilic will have to establish some particular matters to attract a grant of special leave, he has not demonstrated why the Court of Appeal was wrong. Mr Zdrilic has a tendency instead to give emphatic repetition to his salient points as if doing so will give them more force than they have previously received. As understandable as that approach may be, it does not further his cause. 42Mr Zdrilic also embraces selective portions of the reasoning of the Court of Appeal without coming to terms with the parts that do not favour him. Stevenson J held that Mr Hickie was not a principal responsible for the acts of misrepresenting agents. Basten JA agreed. Despite what Leeming JA said at [68] in the Court of Appeal judgment, Mr Zdrilic appears to ignore that at [69] his Honour also said this: "[69] I agree with what Basten JA has said about the absence of a case against the Hickie interests, and his Honour's proposed orders as to costs..." 43It will be recalled that Basten JA had earlier agreed with Stevenson J that there was no evidential basis for the agency. That was an unsurprising finding by the trial judge having regard to the quoted concession made by Queen's Counsel appearing for Mr Zdrilic that a representation by Mr Renshall of his asserted authority to negotiate on behalf of Mr Hickie would not be sufficient to establish agency. Basten JA reiterated that nothing said in the course of the proceedings in the Court of Appeal cast any doubt upon that finding. Leeming JA's agreement at [69] is directed to reinforcing that proposition. It is wholly inimical to the case Mr Zdrilic continues to propound. 44Nor does there appear to be any reasonable prospect that the decision of the Court of Appeal would attract attention as a special leave candidate. It seems clearly to be a case that turns wholly upon unexceptionable facts and is concerned with no particular issue of law of wider general interest or importance. Despite the manifold ways in which Mr Zdrilic has attempted to formulate his concerns, they ultimately distil entirely to a single complaint that the findings of no agency are wrong. That factual dispute is wholly unlikely to attract a grant of special leave to appeal to the High Court. 45Moreover, the balance of convenience now clearly favours the plaintiffs. The corporate defendants are insolvent. There is no relationship between the solvency of any of the defendants and the prospect that the costs judgment will be enforced. The subject matter of the stay is not co-extensive with the subject matter of the proposed appeal to the High Court, so that there is no risk that the appeal will prove to be abortive if the defendants are successful there. The defendants have not identified anything that approaches arguable grounds of appeal, or some matter that would attract a grant of special leave. There is no identified risk that the plaintiffs would dissipate the benefit of the costs judgment so that it was beyond the reach of the defendants in the (highly unlikely) event that it was overturned in due course. The defendants have never challenged the quantum of the costs judgment or the assessment process that generated it. 46I am not satisfied that the defendants have established or demonstrated any reason at all that warrants the exercise of discretion in their favour.
The plaintiffs' motion 47The plaintiffs filed a notice of motion on 3 April 2014 seeking a single substantive order (erroneously suggesting on the title page that the order was sought on behalf of Land Enviro Corp) that the amount of $15,000 paid into Court on 28 May 2013 on behalf of the defendants in compliance with the orders of McCallum J be paid to Bartier Perry on behalf of the plaintiffs. That order was made by way of security for the plaintiffs' costs of the hearing of the defendants' s 46(4) application in the Court of Appeal. 48The application is supported by the affidavit of Philip James Brand, the solicitor working in the office of Bartier Perry with the conduct of this matter on behalf of the plaintiffs, which was sworn 1 April 2014. Mr Brand deposed, among other things, to the fact that in his opinion as a solicitor with over 30 years' experience, the work undertaken by Bartier Perry and counsel retained by that firm for the plaintiffs would have generated party/party costs under the Legal Profession Act 2004 referable to the s 46(4) proceedings in excess of $15,000. Tax invoices from Mr Lever SC and Bartier Perry that are annexed to the affidavit support Mr Brand's opinions. Mr Brand was not cross-examined. The defendants did not actively oppose the order sought, otherwise than in the context of their principal prayers for relief. 49There is not in my opinion any demonstrated basis why the order sought by the plaintiffs should not be made.
Conclusions and orders 50I consider that the following orders should be made:
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 29 April 2014
Hickie
Land Enviro Corp Pty Ltd
(1985) 2 NSWLR 685
(2004) 218 CLR 451
(1986) 161 CLR 681