That is the order which Mr Parkinson now wishes to have stayed.
11 It is well established that an appeal to a single Judge of this Court from a decision of an Associate Justice of the Court is governed by the same considerations as apply when an appeal is taken from a single Judge to the Court of Appeal. There are two elements which I should consider in the application for a stay.
12 Firstly, is there any prospect of success in the appeal, or is the appeal misconceived, so that to grant a stay would be to defeat the end of justice. Secondly, assuming that there is sufficient prospect of success on appeal, where does the balance of convenience lie or, putting it more broadly, where do the interests of justice lie, as to whether or not a stay should be ordered pending the determination of the appeal.
13 I have only had a brief acquaintance with the matter in addresses this afternoon, so that it is not proper for me to express any concluded view as to whether the appeal would succeed or fail. Mr Crossland has pointed out what he says are a number of flaws in his Honour's reasoning. It seems to me that the appeal is, at the least, arguable. His Honour may, as Mr Crossland says, have misunderstood the effect of the guarantee in arriving at the conclusion which he did. It would not be possible to form a firmer view until the appeal is argued properly.
14 Therefore, the more substantial consideration for me to consider on this application is the second factor; that is essentially where do the interests of justice lie. This is not an appeal, as is so often the case, in which one side may be compelled to pay a judgment debt which may be irrecoverable if the appeal succeeds.
15 Here, Mr Parkinson is a co-obligor with Ms Morkaya under the lease to pay, not only ongoing and current rent but, of course, arrears of rent. As I have said, it is conceded that, as at the date that he departed the leased premises, there was an amount in excess of $40,000 owing in arrears of rent. Taken prima facie, at the very least, this means that an equitable proportion of Mr Parkinson's share of that outstanding rent as at the time that he left the premises must have been well in excess of $10,000, at least $20,000, as the figures presently stand.
16 If Mr Parkinson pays the amount ordered by his Honour, the amount will not be paid to Ms Morkaya, or even exclusively for her benefit. The money will be paid in reduction of an obligation in respect of which Mr Parkinson himself is co-obligor. Further, the payment will operate so as to reduce a liability in respect of an asset which, subject to orders of the Court in the Property (Relationships) Act suit, would enure for the benefit of both parties as co-lessees.
17 In other words, this is not a case where a payment may be made pursuant to an order later set aside and, thereafter, lost for the benefit of the party successful on appeal. Whether or not the appeal succeeds, the payment made by Mr Parkinson will have been substantially for his own benefit.
18 It seems to me that, bearing in mind the discretionary factors to which Macready AsJ adverted and bearing in mind that the interests of Mr Parkinson in making the payment are equally as well served as the interests of Ms Morkaya, I do not think that a strong ground is made out for interference with his Honour's order.
19 I have, however, some concern about the assertion made by Mr Parkinson that, if the order is not stayed, he may be forced into bankruptcy as a result of what is, in effect, an interlocutory order. He also expresses concern that his inability to comply with the order will mean that he will be in contempt of court and liable to punishment by the Court.
20 However, I have had regard to the affidavit by Mr Parkinson upon the basis of which he makes those assertions. The affidavit, which is dated 20 June 2008, is very sparse in the financial information which it provides. It makes the assertion that Mr Parkinson has no funds available to pay the sum of $10,000. It refers to specific credit card debts. It refers to a joint account which he has with his brother, but does not give either the particulars of that account or the amounts standing to its credit or what the position is in relation to that account. He refers to a business bank account which, apparently, has some $5,200 in credit. He says there are creditors' cheques to be drawn on that account, but he does not give the amounts of those creditors' liabilities, nor does he give any information which would lead to the conclusion that those creditors' debts are more pressing than compliance with an order of the Court for the payment of money.
21 The affidavit also states that Mr Parkinson owns properties at Roselands and Bankstown, both of which are mortgaged. He says that the mortgage debt exceeds the equity in the property, but there is no more information given, so that it is impossible to determine whether that conclusion is warranted on the facts. It is not possible to determine whether the conclusion is the expression of Mr Parkinson's own unverified opinion as to the market value of the properties or is supported by some other evidence.
22 It seems to me that the information provided by Mr Parkinson as to his financial incapacity to pay the debt created by the interlocutory order is inadequate to persuade me that the order should be stayed by reason of present financial incapacity. It is true that if Mr Parkinson fails to comply with the order he will, prima facie, be in contempt of an order of the Court. However, that does not mean that Mr Parkinson will be punished for non-compliance with an order of the Court without further opportunity being afforded to him to show that compliance was impossible for him, rather than a matter of his choice.
23 If contempt proceedings are brought, it will be for Mr Parkinson to demonstrate that the order was, in truth, impossible for him to perform. If he is to do that, then he will have to provide information of much greater detail than he has done in his affidavit of 20 June 2008.
24 The lack of information as to Mr Parkinson's position also induces me to place no weight on his assertion, at this stage, that if the order is not stayed he will be forced into bankruptcy.
25 It is for those reasons that I decline to stay the order made by Macready AsJ on 13 June 2008. The Court will now make directions as to when and how the Motion for the appeal is to be dealt with.
26 Mr Parkinson seeks a stay of the order made on 13 June 2008 for a period of seven days in order to enable him to make arrangements to comply with it. That application is not resisted by Ms Morkaya. Accordingly, I grant that application. The order made by his Honour on 13 June 2008 will be stayed up to and including 27 June 2008.
27 The costs of today are reserved.