Rapid Roofing Pty Ltd & Ors v Natalise Pty Ltd & Ors [2007] QCA 179

[2] The applicants for the stay have filed an application for special leave in the High Court of Australia which might, but probably will not, come on for hearing in June 2007. The applicants for a stay reveal in the affidavit material filed on their behalf that they claim a net excess of assets over liabilities of $1.1 million, but they have not made any payments in satisfaction of the judgment ordered against them. The respondents to the stay, who were successful before the Court of Appeal, oppose the application, complaining they have succeeded on their counter-claim in the litigation and that the applicants are simply attempting to avoid the enforcement of a security held by the respondents over a residential property owned by the Ernestines, and without paying any money into this Court.

[3] That is all accurate, and it is only by realisation of the security that the present respondents will satisfy the judgment ordered in their favour. On the other hand, they do have that security, and I consider I am obliged to assume that the applicants have at least an arguable case to advance for special leave. They primarily contend that the decision of this Court proceeded on a point not reflected in the pleading. That may be arguable, and it is not appropriate to express any opinion, other than the applicants may have difficulty in establishing that their complaint makes a ground on which to grant special leave.

[4] The critical issue is the balance of convenience. The current respondents have the benefit of a security, although they are having to wait for their money, and had to borrow money themselves to finance the litigation, and are very anxious to recover the awarded sum. The respondents also complain that the applicants have caused delay during the proceedings, including the application for special leave.

[5] I consider the balance of convenience marginally favours the granting of a stay, but on conditions. I order that orders numbered 1(c) and (d) of the orders made by this Court on 23 March 2007 be stayed until the determination of the application to the High Court for special leave to appeal from that judgment, and the stay discharged if the application is dismissed; and in the event that special leave is allowed, those orders are stayed until the outcome of the appeal to the High Court, such stay being conditioned upon the applicants for special leave and appellants if leave be granted prosecuting hereafter without any delay caused by them the application for special leave and appeal respectively. I grant liberty to apply.