THE STAY APPLICATION
13 An appeal does not operate as a stay of execution of an order made at first instance: see r 36.08 of the Rules.
14 Rule 41.03 provides that a party who is bound by an order of the Court may apply for an order that that order be stayed. Rule 41.11 provides for a party to make application for a stay of execution of an order made by the Court.
15 Ms Madden's application relates only to the enforcement of the costs orders which have been made against her. She has already paid to Seafolly the damages which were awarded against her for engaging in misleading and deceptive conduct.
16 The Court has a wide and unfettered discretion to grant stays of operation of its judgments or orders. The power must, of course, be exercised judicially.
17 In Alexander v Cambridge Credit Corp Ltd (Receivers Appointed) (1985) 2 NSWLR 685 at 693-5 the New South Wales Court of Appeal undertook a comprehensive review of the authorities relating to the exercise of comparable powers. The Court distilled a number of principles which were to guide the exercise of the discretion. It said (at 694-5) that:
"… The onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties: Trlin. 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: see Supreme Court Rules, Pt 51, r 10; Waller v Todorovic. 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: Attorney-General v Emerson (1889) 24 QBD 56. Where there is a risk that if a stay is granted, the assets of the applicant will be disposed of, the Court may, in the exercise of its discretion, refuse to grant a stay: cf Clyne v Deputy Commissioner of Taxation (1982) 56 ALJR 857. 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: Andrews v John Fairfax & Sons Ltd [1979] 2 NSWLR 184. 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.
…
Two further principles can be mentioned. The first is that where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay: Scarborough v Lew's Junction Stores Pty Ltd (at 130); applied in Sun Alliance Insurance Ltd v Steiger (Full Court, Supreme Court of Victoria, 22 March, 1985, unreported). Thus, where it is apparent that unless a stay is granted an appeal will be rendered nugatory, this will be a substantial factor in favour of the grant of a stay: Wilson v Church (No 2) (1879) 12 Ch D 454; Re Middle Harbour Investments Ltd (In Liq) (at 2). Secondly, although courts approaching applications for a stay will not generally speculate about the appellant's prospects of success, given that argument concerning the substance of the appeal is typically and necessarily attenuated, this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interest of the parties, from making some preliminary assessment about whether the appellant has an arguable case."
18 The Court also rejected the notion that stay orders of the kind presently sought should only be made in special or exceptional circumstances. The Court held (at 694) that it was "sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of discretion in his favour."
19 These principles have been adopted and applied in a number of cases in this Court: see, for example, Powerflex Services Pty Ltd v Data Access Corporation (1996) 67 FCR 65 at 66; ACCC v BMW (Aust) Limited (No 2) [2003] FCA 864 at [5]; Momentum Productions Pty Ltd v Lewarne [2007] FCA 1988; and Premier Pet Pty Ltd v Brown [2013] FCA 17 at [9].
20 Seafolly has not prepared a bill of costs in taxable form. It is, as a result, only possible to estimate the quantum of the costs orders made against Ms Madden within a significant range. Costs experts engaged by the two parties have estimated the costs at $351,241.95 (Ms Madden's expert) and $508,392.05 (Seafolly's expert).
21 Ms Madden has deposed that her liquid assets are minimal and certainly inadequate to meet costs orders of this magnitude. She does, however, own three parcels of real property. One is unencumbered. That is her family home. She lives there with her two children. She places a value of $1.6 million on this property. She is presently building another house in which she proposes, eventually, to reside. She places a value of $2.2 million on the property on which this house is being built. She also owns a development property. At present a house stands on the property but it is proposed to demolish the house and to replace it with a commercial development. This land is valued at about $500,000. It is, however, subject to a mortgage of $460,000. The property on which her new residence is being constructed is also being used to provide security for the loan on this development property. Ms Madden's only other significant asset is a motor vehicle valued at about $60,000.
22 Ms Madden submitted that the principal consideration was one of timing. She is not, presently, in a position to satisfy the costs orders made by the Court. She has a limited income and is not in a position to borrow the necessary funds because she would not be able to service such a loan. She could put her present residence on the market but it may take time to sell and a time for settlement would have to be negotiated with the purchaser. By that time the appeal will, in all likelihood, have been heard, if not determined. Were Ms Madden to be successful she would not be required to satisfy the costs orders but would have been forced to sell one of her principal assets.
23 Ms Madden further contended that she had acted bona fide in appealing and that she had reasonable prospects of succeeding on the appeal.
24 Ms Madden also expressed a concern that, if the orders are not stayed, Seafolly may pursue bankruptcy proceedings against her. If such proceedings are successful she may be prevented from prosecuting her appeal.
25 Seafolly asserted a prima facie entitlement to payment of the costs orders without further delay. It contended, rightly, that the existence of the pending appeal did not operate as a stay. It asserted that Ms Madden had assets against which she could borrow in order to meet her obligations. It expressed concern that Ms Madden might dispose of some of the assets if a stay were to be granted. Were that to occur and were Seafolly to succeed in defending Ms Madden's appeal, it may not be able to obtain payment of the costs orders because Ms Madden would be without the resources to make the necessary payments. If the stay is refused and Ms Madden satisfies the costs orders, Seafolly would, it submitted, have no difficulty in making a prompt repayment to Ms Madden.
26 Ms Madden sought to meet one of Seafolly's concerns by offering undertakings to the Court that she would not dispose of her interest in her present residence or encumber her interest in that property to an extent greater than $400,000 pending the hearing and determination of the appeal.
27 It is for Ms Madden to establish that a proper foundation exists for acceding to her application for a stay. I put to one side, immediately, the speculation that, in the absence of a stay, Seafolly may proceed to bankrupt Ms Madden and thereby prevent her pursuing her appeal. Even if it wished to do so, Seafolly could not satisfy the relevant temporal requirements of the Bankruptcy Act 1966 (Cth) prior to the hearing of the appeal.
28 There is, however, greater force in Ms Madden's argument that the only realistic way in which she could satisfy the costs orders would be by placing her home on the market and using part of the sale price to satisfy the orders. Although Seafolly did suggest that alternatives to a sale, such as borrowing, might be available, I accept Ms Madden's evidence that her only practicable option, in the event that a stay is refused, would be the sale of her only unencumbered property.
29 Whilst it is not appropriate that I should venture any assessment of the likelihood of her appeal succeeding, what can be said is that it cannot simply be dismissed as being obviously unmeritorious. It would be grossly unfair to her were she to be forced to sell her home and then be successful on her appeal. She would then be put in a position of having uprooted her family and moved to alternative accommodation only to find that this significant disruption to her family's daily lifestyle need never have occurred.
30 The appeal hearing is a matter of weeks away and it is unlikely that any sale could be effected before the hearing takes place and, possibly, before the appeal is determined. Seafolly's interests would, in the meantime, be protected by the undertaking which has been proffered by Ms Madden.
31 A stay, subject to the proposed undertakings, would, in my judgment, be fair in the present circumstances.