//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2026] NSWCA 95
procedural. The notice of motion dated 29 April 2026 and filed 30 April 2026 was dismissed with costs: [41].
The applicants asked the Court to pause enforcement of the judgment while they considered or prepared a special leave application. They had not filed that application by the hearing. The Court found the proposed grounds did not give substantial prospects of special leave, and the evidence indicated that enforcement could not be completed before the filing deadline. The Court therefore refused even a short stay and ordered the applicants to pay the costs of the motion.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
2,349 words · generated 08/10/2026
This judgment concerns an interim application about enforcement, not a fresh determination of the underlying dispute. On 29 April 2026, the Court of Appeal dismissed the Folleys' appeal and ordered them to pay the Hockeys' appeal costs. The consequences included a judgment debt of $952,930.69, including pre-judgment interest, further interest accruing after 10 June 2025, and the Hockeys' trial and appeal costs ([1]).
2 cited instruments linked from this judgment.
The underlying case arose from a 2018 share sale agreement. The Folleys agreed to buy the Hockeys' shares in Danc Pty Ltd for $2.3 million. Part of the price was supported by $690,000 in vendor finance, secured by a second mortgage over a property owned by Majikk. Macquarie Bank had provided $1.61 million in finance secured by a first-ranking security over that property ([14]). The dispute included whether the Hockeys had failed to remove a charge from the Personal Property Securities Register, whether the Folleys had proceeded to completion despite that issue, and whether the vendor finance remained repayable.
After the first-instance judgment allowed the Hockeys' cross-claim, the Folleys appealed. The Court of Appeal dismissed that appeal. Mitchelmore JA's judgment summarises the appeal grounds and the Court of Appeal's reasons at [20]-[23]. Those appeal issues provide context for the stay application, but the judgment in this matter does not reconsider them as a new appeal.
The Folleys filed the stay motion on 30 April 2026, seeking a pause while they considered an application for special leave to appeal to the High Court or other review-related steps ([2], [4]-[6]). At the hearing on 18 May 2026, they had still not filed an application for special leave. The filing deadline, if they wished to file within time, was 27 May 2026 ([7]). They sought a stay at least until that deadline and potentially for a short further period if they filed.
The Hockeys opposed the motion. Their solicitor gave evidence that enforcement steps could not be completed before 27 May. Any process would first involve letters of demand and then steps appropriate to each debtor. Any attempt to take possession of or sell Majikk's property would also require attention to Macquarie Bank's prior mortgage ([9]). In response to that evidence, the Folleys accepted that their original concern about enforcement occurring before they could make applications was negated ([10]).
Mitchelmore JA dismissed the notice of motion with costs ([41]).
The Court applied the principles summarised in 123 259 932 Pty Ltd v Cessnock City Council (No 2) [2023] NSWCA 89. A stay pending a special leave application is an exceptional form of relief. Relevant considerations include whether the applicant has substantial prospects of special leave, where the balance of convenience lies, and whether refusing a stay might make the special leave application or a later appeal nugatory. These factors are not exhaustive, and the ultimate question is whether a stay is warranted in all the circumstances ([24]-[25]).
The Court first considered the prospects of special leave. It noted a difficulty: there was no filed special leave application identifying the grounds that would actually be advanced ([26]). The Folleys had provided two sets of submissions, containing overlapping but not identical lists of issues and questions. The Court assessed them on the basis most favourable to the Folleys, by assuming that the proposed application would include all issues in both sets ([27]-[29]).
The Court treated the prospects question as a judicial impression, citing Bryant v Commonwealth Bank of Australia [1996] HCA 3. It also considered it undesirable to conduct a detailed assessment of the merits of a foreshadowed application ([29]). Applying that approach, it concluded that the proposed grounds did not have substantial prospects of obtaining special leave ([30]).
The Court's reasons were tied to the particular proposed issues. Some sought to reagitate grounds already rejected by the Court of Appeal, including arguments about the agreement's conditions precedent, knowledge of the charge, abandonment of a contractual claim, and Majikk's position ([30]). The Court considered that these matters did not raise a question of law or public importance or appear to require resolution in the interests of the administration of justice, the criteria identified in s 35A of the Judiciary Act 1903 (Cth) ([30]). Some grounds about further or fresh evidence also appeared weak in this context because the Court of Appeal had found that the evidence would not have produced a different result ([31]).
Other proposed issues had not been raised in the Court of Appeal or were framed differently from the issues that had been raised there. The Court considered it unlikely that special leave would be granted to consider those matters as presented ([32]). Its conclusion was an assessment of prospects for special leave, not a final ruling on every possible argument that might appear in a future application.
The balance of convenience also favoured the Hockeys, though not by a significant margin ([36]). The applicants were concerned about enforcement against Majikk's property, but the property's value, the outstanding debt to Macquarie Bank, and the bank's position were unknown ([33]-[35]). The evidence that enforcement could not be completed before 27 May reduced the immediate risk. The Folleys accepted that this evidence answered their concern that enforcement would occur before they could make applications ([9]-[10]).
The Court also considered that the special leave application had not been filed by 18 May, 19 days after the Court of Appeal's judgment. That delay cast doubt on the Folleys' assurances that they would pursue further proceedings expeditiously ([36]). The judgment does not treat that delay as a standalone rule against a stay; it is one circumstance informing the balance of convenience.
Finally, the possible further applications did not change the result. The proposed corrective application about whether orders had been made by consent was unlikely to affect the Court of Appeal's other reasoning ([38]). Possible applications concerning the later sale of Danc's rent roll appeared to involve claims outside the proceedings, and unknown claims of that kind did not justify a stay in this case ([39]).
The judgment does not purport to create a new test for stays pending special leave. It applies principles summarised in Cessnock (No 2), drawing on the High Court approach described there ([24]-[25]). The established framework in this judgment is that a stay is exceptional; substantial prospects of special leave and the balance of convenience are important; the risk that refusing a stay may render a later process nugatory is particularly relevant; and the factors are not exhaustive.
The judgment also clarifies how the prospects inquiry was approached in this particular application. The question was whether special leave might be granted, not whether a later appeal would succeed if special leave were granted ([24]). The judge formed a judicial impression based on the material available, despite there being no filed special leave application, and avoided a detailed merits analysis ([26]-[30]).
The outcome does not establish that a stay will always be refused if the special leave application has not yet been filed. The Court assessed the whole setting: the content of the proposed issues, the near-term enforcement evidence, the applicants' concern about the property, and the delay in filing. Its stated conclusion was that this combination did not justify even the short stay requested ([40]).
Nor does the judgment hold that a short period to prepare a special leave application can never justify a stay. It decides only that these applicants had not shown circumstances warranting one on the evidence and submissions before Mitchelmore JA. The decision is procedural and fact-specific.
The costs result reflects the ordinary costs rule, which the Court stated was that costs follow the event. It found no basis to depart from that rule after dismissing the motion ([41]).
At [24], the judgment adopts the framework summarised in Cessnock (No 2). The relevant considerations include prospects of special leave, the balance of convenience, and the risk that the special leave process or later appeal could be rendered nugatory without a stay. In plain English, the Court considers both the legal significance of the proposed further appeal and the practical consequences of allowing enforcement to proceed.
At [25], the judgment emphasises that those considerations are not a mechanical checklist. The ultimate question is whether, taking all circumstances into account, a stay is justified. A stay might also be granted on terms designed to protect the respondent's interests, though that possibility did not lead to relief here.
At [29], the judge explains the method used to assess prospects. A court forms a judicial impression, but should avoid undertaking a detailed merits analysis of a proposed application that has not yet been filed. The judge considered both sets of submissions because Mr Folley said the later document did not replace the earlier one.
At [30], the judge states: “I would not assess the prospects of the Folleys obtaining special leave as substantial.” The reasons included that several proposed grounds repeated matters considered in the Court of Appeal and did not appear to raise a question of law or public importance or a matter requiring resolution in the interests of the administration of justice.
At [36], the judge states that the balance of convenience favoured the Hockeys, “although not by a significant margin.” This is a measured conclusion. The judge recognised uncertainty about enforcement against the property and the priority mortgage, while also considering the Hockeys' interest in receiving the benefit of their judgment and the delay in filing the special leave application.
At [40], the judge concludes that the Folleys had not established circumstances warranting even the short stay pending the High Court filing deadline. This answers the immediate application, rather than deciding whether any later application to the High Court would succeed.
The decision is most relevant to applications seeking a stay of enforcement after an appellate judgment, where the losing party has not yet filed a special leave application but seeks a pause while preparing or considering one. It is also relevant where the proposed grounds are set out in submissions or other preliminary material rather than in a filed application.
The judgment indicates that a court may assess those proposed grounds together, including where they appear across multiple submissions. Here, the judge assessed the case favourably to the applicants by treating all issues across both submissions as potentially part of the proposed application ([27]-[29]). Even on that approach, the judge found the prospects not substantial.
The enforcement evidence may be important. Here, the respondents' solicitor said that enforcement could not be completed before the special leave filing deadline, and the applicants accepted that their immediate concern was negated ([9]-[10]). The Court nevertheless considered the broader balance of convenience, including the unknown property value, the unknown position of the first mortgagee, the respondents' interest in the judgment, and the delay in filing ([33]-[36]).
The case is also relevant where applicants rely on possible corrective or collateral proceedings to support a stay. It indicates that a court may examine whether those proposed steps are sufficiently concrete and related to the proceeding in which the stay is sought. The potential applications here did not establish a sufficient basis for relief, particularly where one appeared to concern claims outside the proceedings ([38]-[39]).
These are features of this judgment, not an exhaustive statement of when a stay may be granted. The decision's own account says the relevant considerations are not exhaustive ([24]-[25]).
The supplied judgment does not refer to any later court treatment of Tin-Tagel Majikk Pty Ltd v Hockey (No 3). It was decided on 21 May 2026, and the text provided contains no later decisions applying, distinguishing, following, or criticising it. No conclusion about subsequent treatment can therefore be drawn from this source.
The judgment itself relies on Cessnock (No 2) for the stay principles and cites Bryant for the judicial-impression approach to assessing prospects ([24]-[25], [29]). It also refers to s 35A of the Judiciary Act 1903 (Cth) when considering whether proposed issues raise a question of law or public importance or require resolution in the interests of the administration of justice ([30]). Those are sources used by Mitchelmore JA, not later treatment of this judgment.
The judgment does not decide what the High Court would have done if the Folleys had filed a special leave application. The judge assessed only the prospects of obtaining special leave for the purpose of the stay motion ([29]-[32]).
It also does not decide what enforcement steps the Hockeys could ultimately take against the property. At the hearing, no enforcement action had been taken, the position of Macquarie Bank was unknown, and the property's value and relevant debt position were not established ([33]-[35]). The judgment therefore treats the risk of enforcement as limited in the near term, rather than resolving whether a sale or other enforcement process would occur.
The judgment does not determine the merits of the proposed corrective or slip-rule issue concerning the orders said to have been made by consent. It assumes for the purpose of analysis that the Court of Appeal may have proceeded on a misapprehension, but concludes that the issue was unlikely to be significant because the relevant appellate reasoning did not depend on it ([38]).
Nor does it determine any claim concerning the post-trial sale of Danc's rent roll. The judge considered that any such claim appeared to be outside the scope of the proceedings and that its precise basis was not sufficiently known ([39]).
The broader practical boundary is therefore clear but limited: this decision refused a stay on the material before the Court, on the proposed grounds and enforcement evidence then available. It leaves open how a court might assess a different application supported by a filed special leave application, clearer evidence of imminent enforcement, or materially different proposed grounds.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Tin-Tagel Majikk Pty Ltd v Hockey (No 3) [2026] NSWCA 95
Hearing dates: 18 May 2026
Date of orders: 21 May 2026
Decision date: 21 May 2026
Before: Mitchelmore JA
Decision: (1) The notice of motion dated 29 April 2026 and filed 30 April 2026 is dismissed with costs.
Catchwords: CIVIL PROCEDURE — stay of judgment — stay pending application for special leave to appeal to the High Court — stay pending application for review — where no application has been made — prospects for grant of special leave not substantial — limited risk of enforcement in near term
Legislation Cited: Judiciary Act 1903 (Cth), s 35A
High Court Rules 2004 (Cth), r 41.02.1
Cases Cited: 123 259 932 Pty Ltd v Cessnock City Council (No 2) [2023] NSWCA 89
Bryant v Commonwealth Bank of Australia [1996] HCA 3; 70 ALJR 306
Texts Cited: Nil
Category: Procedural rulings
Parties: Tin-Tagel Majikk Pty Ltd (first applicant)
Kenneth Roy Folley (second applicant)
Kathryn Mary Folley (third applicant)
Majikk Pty Ltd (fourth applicant)
Wayne Craig Hockey (first respondent)
Susan Noelene Eastway (second respondent)
Ashleigh Jane Eastway (third respondent)
David Richard Eastway (fourth respondent)
Courtney Louise Eastway (fifth respondent)
Representation: Counsel:
Applicants (in person)
B F Katekar SC and E Hall (respondents)
Solicitors:
Aubrey Brown Lawyers (respondents)
File Number(s): 2025/00254170
Publication restriction: Nil
MITCHELMORE JA: On 29 April 2026, the Court of Appeal handed down its decision in Tin-Tagel Majikk Pty Ltd v Hockey [2026] NSWCA 72. Relevantly for present purposes, the Court dismissed the appeal and ordered the appellants to pay the respondents’ costs of the appeal. As a result of the orders of the Court of Appeal, the appellants were liable to pay judgment in the amount of $952,930.69 (incl. pre-judgment interest), plus the interest accrued since 10 June 2025, as well as the respondents’ costs of the trial and the appeal.
On 30 April 2026, the appellants filed a notice of motion seeking to stay the enforcement of the judgment and costs orders made by the Court of Appeal as well as those made at first instance, pending a decision as to whether to apply for special leave to appeal to the High Court of Australia or otherwise seek review of the Court of Appeal’s decision.
As was the case in the Court of Appeal, Mr Folley appeared at the hearing, representing himself, his wife, Kathryn Folley, and the two companies of which each is respectively the sole director and shareholder, namely, Tin-Tagel Majikk Pty Ltd (Tin-Tagel) and Majikk Pty Ltd (Majikk). I will refer to the appellants collectively as “the Folleys”.
The relevant orders that the Folleys sought in the notice of motion were in the following terms:
“10. At the further hearing of this motion, the appellants seek a stay of enforcement until the earliest of:
(a) determination of any application for special leave to appeal to the High Court of Australia filed within time;
(b) determination of any related corrective, slip-rule, fresh-evidence, protective or injunctive application;
(c) further order of this Court or the High Court of Australia;
(d) if no application for special leave is filed by 4.00pm on 27 May 2026, 4.00pm on 27 May 2026.
- In the alternative to Order 10, the appellants seek a stay of enforcement for 28 days from 29 April 2026, or such other period as the Court considers appropriate.”
In the “Grounds” section of the notice of motion, the Folleys noted that they were self-represented and required “a short period” to consider the Court of Appeal’s judgment, and whether it disclosed any errors upon which a further appeal or review application may be founded, and that any enforcement steps taken in the interim period may cause irremediable prejudice. In an affidavit sworn 3 May 2026 in support of the notice of motion, Mr Folley expressed particular concern that the judgment debt may be enforced against a property in Turramurra (the Property), which is owned by Majikk and over which Majikk has granted a second mortgage to the respondents.
In written submissions prepared by Mr Folley and filed on 17 May 2026, the stay sought was described as short, protective and directed to preserving the position pending filing a special leave application, any necessary application for further stay relief, any slip-rule or corrective action concerning the entered orders, and any further order.
As is apparent from the reference to “any application for special leave to appeal…filed within time” in proposed order 10(a), at the date of the notice of motion the Folleys had not filed an application for special leave. That they had not done so was consistent with the notice of motion being filed the day after the Court of Appeal’s judgment. However, at the hearing of the notice of motion, on 18 May 2026, Mr Folley confirmed that no application for special leave had been filed. The time for filing such an application, if filed “within time”, expires on 27 May 2026, being 28 days after the judgment below was pronounced: see r 41.02.1 of the High Court Rules 2004 (Cth). Mr Folley stated at the hearing that a special leave application would be filed before the deadline.
The respondents, to whom I will refer collectively as “the Hockeys”, opposed the relief sought in the notice of motion. Mr Katekar SC appeared with Ms Hall of counsel for the Hockeys.
In an affidavit affirmed 15 May 2026 by Sharnie Leith, the Hockeys’ solicitor on the record, Ms Leith stated that none of the processes for enforcing the orders of Walton J could be completed in the period before 27 May 2026. Those processes would involve, first, issuing letters of demand to each of the appellants, and then, if payment was not forthcoming, taking such steps as appropriate for each appellant, two of which are corporations and two of which are natural persons. In so far as Majikk is the registered owner of the Property over which the first and second respondents have a secured interest, Ms Leith observed that Macquarie Bank, as the priority mortgagor, would need to be consulted as part of any process to take possession of and sell the Property.
In light of Ms Leith’s evidence, which was filed in accordance with the practice direction on 15 May 2026, Mr Folley accepted at the hearing of the notice of motion that the concern at the time of filing the notice of motion — that the judgment would be enforced before the Folleys could make any applications — was negated. Nonetheless, the Folleys maintained the application for a stay until 27 May 2026 and, in the event that a special leave application was filed, for a short further period or until further order, to permit them to seek any necessary outcome from the High Court or further directions from a court.
I have referred above to an affidavit sworn by Mr Folley on 3 May 2026. The Folleys relied on two further affidavits of Mr Folley, sworn 15 May 2026 and 17 May 2026. The Folleys also filed two sets of written submissions, the first dated 15 May 2026 and the second dated 17 May 2026.
The Hockeys relied on the affidavit of Ms Leith of 15 May 2026 to which I have already referred, along with an affidavit of Ms Leith affirmed 6 March 2026, which was prepared in the context of an earlier interlocutory application. Written submissions were also filed on behalf of the Hockeys, dated 15 May 2026.
By way of broad outline (the primary judgment is more than 700 paragraphs and the Court of Appeal’s judgment is just under 200 paragraphs), the focus of the proceedings was a Share Sale Agreement (Agreement) dated 17 May 2018 between the Folleys and the Hockeys. Pursuant to the Agreement, the Folleys were to purchase the Hockeys’ shares in Danc Pty Ltd (“Danc”) for $2.3 million. Danc operated a real estate business known as Ray White Bateau Bay. The Agreement contemplated that the Hockeys would provide vendor finance in the amount of $690,000, to be repaid in two years and secured by way of a registered second mortgage over the Property. The Folleys also obtained finance from Macquarie Bank in the amount of $1.61 million, secured by a registered first ranking security over the Property.
Before the sale of the Hockeys’ shares to the Folleys, Macquarie Bank held a charge over Danc’s assets which secured Danc’s and the Hockeys’ then-indebtedness to the Bank pursuant to a loan. Clause 3.2(g) of the Agreement provided that completion was “subject to and conditional upon”, inter alia, the delivery of an executed release of, or undertaking to remove or transfer, any registration on the Personal Property Securities Register (PPSR). The Hockeys paid out the Macquarie Bank loan on the completion date of the Agreement, but they failed to deliver an executed release of the loan, and the charge granted by Danc to Macquarie Bank remained on the PPSR.
The Folleys failed to repay the vendor finance by the agreed date, being 1 June 2020. On 2 April 2024, Danc defaulted under the loan with Macquarie Bank. The Bank appointed receivers to Danc pursuant to the charge registered on the PPSR.
On 28 May 2020, the Folleys commenced proceedings in the Supreme Court alleging that the Hockeys were liable for failing to remove the charge from the PPSR before completion of the Agreement. The Hockeys filed a cross-claim seeking repayment of the vendor finance they had advanced to the Folleys, as well as the balance of the retention amount.
On 10 June 2025, Walton J dismissed the Folleys’ claim and allowed the Hockeys’ cross-claim, ordering the Hockeys to file and serve Short Minutes of Order reflecting the judgment. On 3 July 2025, his Honour made orders which relevantly included:
“(1) The Second Further Amended Statement of Claim is dismissed.
(2) Judgment in favour of the first and second cross-claimants in the sum of $631,657.29 (‘the vendor finance amount’).
(3) The balance of the retention amount held in the trust account of Aubrey Brown Lawyers in the amount of $54,915.36 (‘the retention amount’) be released to the first and second cross-claimants.”
“(1) The plaintiffs shall pay the defendants interest on the vendor finance amount at a rate of 5% per annum, accrued on a daily basis from 1 June 2018 to 10 June 2025, in the amount of $265,914.23.
(2) The plaintiffs are liable to the defendants for interest on the retention amount in the sum of $444.81, being the interest that accrued on the retention amount since completion. That amount is to be released from the trust account of Aubrey Brown Lawyers to the first and second cross-claimants.
(3) The plaintiffs shall pay the defendants’ costs on an ordinary basis for the whole of the proceedings, as agreed or assessed.”
On 9 September 2025, the Folleys commenced an appeal. By notice of motion dated 3 March 2026, the Folleys sought leave to rely on fresh and further evidence, and to rely on an amended notice of appeal. The Court of Appeal (Price AJA, Kirk and Adamson JJA agreeing) granted leave to the Folleys to rely on the amended notice of appeal: at [59]. The Court refused leave to rely on further evidence (save for a series of emails which were relevant to an alleged denial of procedural fairness (Ex KRF-5)), and also refused leave to rely on fresh evidence: at [55], [57].
Price AJA summarised the first nine grounds of appeal as follows at [20]:
“In Ground 1, the Folleys rely on the primary judge’s finding at PJ[403]-[404], that the Hockeys failed to comply with cl 3.2(g) of the Agreement but challenge his Honour’s findings at PJ[416]-[420] that the Conditions Precedent were waived by proceeding to completion. Grounds 2 to 6 challenge the primary judge’s findings that the Folleys were aware of the existence of both the Charge and the PPSR registration and were imputed with knowledge of their solicitors being their agents at PJ[428]-[434]. Ground 7 challenges the primary judge’s finding at PJ[436] that the Folleys had abandoned their claim that the Hockeys had not properly complied with their obligations under cl 3.4(b) of the Agreement. Ground 8 challenges the primary judge’s findings at PJ[444(3)], [493] and [496] that the Folleys had elected to affirm the Agreement and at PJ[495]-[496] that they were aware of the Charge and the PPSR registration when they decided to proceed to completion and the relief sought was not available. Ground 9 contends that the primary judge erred in failing to order partial rescission of the Agreement so as to remove the obligation of the Folleys to repay the vendor finance to the Hockeys in accordance with cl 6.6(e) of the Agreement.”
The additional grounds of appeal for which the Folleys were granted leave to amend concerned: whether the primary judge erred in making orders against Majikk in circumstances where his Honour found it was not a party to the Share Sale Agreement (ground 10); whether the Hockeys breached cl 6.6(b)(i) of the Agreement, in light of further evidence sought by the applicants to be adduced (which evidence was not ultimately admitted) (ground 11); whether the primary judge denied the Folleys procedural fairness in making adverse credit findings against them as witnesses (ground 12); the primary judge’s construction of the charge (ground 13); and the primary judge’s construction of cl 13.4 of Sch 4 of the Agreement.
In dismissing the appeal, Price AJA dealt with the grounds as follows:
His Honour concluded that there was no error in the primary judge’s construction of cl 3.3 of the Agreement. It followed that, by proceeding to completion, the Folleys could not insist on compliance with the conditions precedent in cl 3.2 even though, as the primary judge accepted, a condition precedent had not been satisfied (ground 1): at [92].
In relation to grounds 2 to 4, which challenged the primary judge’s finding that the Folleys had either imputed or actual knowledge about the charge and the PPSR, Price AJA concluded that the issue of knowledge had little relevance on the primary judge’s construction of cl 3.3 of the Agreement and it was thus not strictly necessary to address these grounds: at [94]. Nonetheless, his Honour considered the grounds and concluded that the primary judge was correct to conclude that the knowledge of the Folleys’ solicitors was correctly imputed to the Folleys, irrespective of whether the solicitors communicated that knowledge to them or whether they exercised diligence: at [95]-[97]. Further, there was evidence, which the primary judge was entitled to rely upon, that the Folleys were in fact aware of the existence of the charge and PPSR registration (grounds 2-4): at [98].
Ground 5, which was addressed to the issue of waiver, was also unnecessary to address in light of his Honour’s conclusion on ground 1: at [94]. Further, and in any event, Price AJA noted that he had considered the issue of waiver in the context of ground 1: at [99].
The issue in ground 6, by which the Folleys contended that they were induced to proceed to completion by representations that the Hockeys made, to the effect that the charge would be discharged on settlement, was not advanced at trial. His Honour concluded that the Folleys did not overcome the heavy burden of establishing that the point, if raised below, could not have been met by any evidence that would have been raised responsively: at [101]-[102].
Ground 7 took issue with the primary judge’s finding that the Folleys had abandoned their pleaded claim that the Hockeys had breached cl 4.3(b) of the Agreement. Price AJA considered it significant that this claim was not one of the 19 issues contained in the Agreed Statement of Issues (ASOI) at trial: at [108]. His Honour also noted that there was one reference to cl 4.3(b) in the written closing submissions prepared by the Folleys’ counsel below, in the context of an argument concerning the construction of cl 3.3: at [109]. Price AJA concluded that the primary judge was correct to regard the pleaded claim as having been abandoned: at [109]-[111].
“[2] It was held in Rinehart v Welker (2012) 83 NSWLR 347; [2012] NSWCA 1 that this Court, when considering whether to stay its own orders pending the determination of an application for special leave to the High Court, should apply the principles applied by the High Court itself in resolving such applications. The most commonly quoted statement of principle in that regard is by Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 at 684-685; [1986] HCA 84:
A stay to preserve the subject matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted. If an order for a stay is made, the respondent is kept out of the benefit of the order of the court in which the matter is pending until the hearing of the application for special leave to appeal. …
In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court’s discretion. In each case when the Court is satisfied that a stay is required to preserve the subject-matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.
[3] Of the four factors, the second is a factor peculiar to consideration by the High Court and is not relevant in this Court. The third factor can be seen as an element of the fourth. The relevant factors identified by Brennan J, thus, are whether there is a substantial prospect that special leave to appeal will be granted and where the balance of convenience lies. The prospects question relates to obtaining special leave, not the prospects of an appeal succeeding if special leave was to be granted: note Gerah Imports Pty Ltd v Duke Group Ltd (1994) 68 ALJR 196 at 197; [1994] HCA 3 per Dawson J.
[4] These factors are not to be applied in a mechanical way: note Rinehart v Welker at [49]. Nor are they exhaustive: Obeid v R (2016) 90 ALJR 447; [2016] HCA 9 at [14] per Gageler J. As explained below, the overall issue is whether the grant of a stay (perhaps on terms) is warranted taking account of all the circumstances. A particularly important matter in that regard is whether the absence of a stay may render the special leave application, and any subsequent appeal, nugatory because of the loss of the subject matter of the appeal: see eg in Gerah at 197–198 per Dawson J.”
“In summary, then, exceptional circumstances must be shown to warrant the grant of a stay pending the determination of a special leave application; significant factors in that regard are whether the applicant has substantial prospects of obtaining special leave, where the balance of convenience lies and whether the application for special leave may be rendered nugatory unless a stay is granted; those factors are not exhaustive; ‘substantial prospects’ does not require that the court conclude that a grant of special leave is likely; the overall question is whether, taking account of all the circumstances, there are sufficiently significant prospects of special leave being obtained to warrant a grant of a stay, perhaps on terms designed to protect the interests of the respondent.”
As the Hockeys submitted, there is an inherent difficulty in determining whether there is a substantial prospect that special leave will be granted where the Folleys have not yet filed an application for special leave that articulates the grounds of appeal they intend to raise.
In relation to the foreshadowed special leave application, in the written submissions dated 15 May 2026 the Folleys identified 14 issues described as “serious issues supporting preservation” (which I refer to below as “Issue D[number]”). Two of those issues did not relate to a special leave application: Issue D12 related to a potential application under the slip rule, while Issue D13 foreshadowed potential applications about post-trial matters, including the sale of Danc’s rent roll. The final issue, D14, relied on the cumulative effect of the other issues.
In the written submissions dated 17 May 2026, the Folleys sought to address the Hockeys’ submission in writing that they had not identified a sufficiently specific basis either for special leave or for other corrective relief. Under the heading “Proposed special leave questions”, the Folleys set out six question topics, by which they alleged errors on the part of the Court of Appeal and the primary judge (which I refer to below as “Question [number]”). As Mr Katekar pointed out during the hearing, there was not a complete overlap as between the two sets of submissions. A significant omission from the written submissions of 17 May 2026 was any allegation of error relating to the construction of cl 3.3 of the Agreement. As I noted above, that issue was the basis of ground 1 in the Court of Appeal, and its determination adversely to the Folleys meant that a number of the other grounds of appeal were unnecessary to determine.
Mr Folley indicated at the hearing that the later submissions did not supersede the earlier submissions. Accordingly, I will proceed on the basis, favourable to the Folleys, that their foreshadowed special leave application will seek to advance each of the issues identified across the two documents. Consistently with the authorities, evaluating the prospects of special leave in this context involves a judicial impression: Bryant v Commonwealth Bank of Australia [1996] HCA 3; 70 ALJR 306 at [13]. For the reasons Kirk JA set out in Cessnock (No 2) at [21], it is undesirable to undertake a detailed analysis of the merits of the foreshadowed application.
As to the prospects of the matters that the Folleys have foreshadowed across both sets of submissions, I would not assess the prospects of the Folleys obtaining special leave as substantial. I have summarised above the grounds of appeal that the Folleys advanced in the Court of Appeal, and the Court’s resolution of those grounds. The foreshadowed application for special leave seeks to reagitate ground 1 (Issue D2), grounds 2 and 3 (Issue D4), ground 4 (Issue D5; Question 4), ground 7 (Issue D1; Question 6), and ground 10 (Issue D11). The foreshadowed issues concerning the Court of Appeal’s resolution of those grounds of appeal do not raise a question of law or public importance, nor do they appear to require resolution in the interests of the administration of justice: see s 35A of the (Cth). Grounds 2, 3 and 4 of the notice of appeal, for example, did not need to be finally determined in light of the Court’s conclusion on ground 1.
The Folleys’ submissions regarding the balance of convenience were necessarily contingent because, as I noted above, the Hockeys have not yet taken any enforcement action. As the Hockeys submitted, there is no evidence on this application as to precisely what the Folleys’ assets are and the value of those assets, including the Property, which is owned by Majikk. That said, the Folleys were concerned in particular with the possible enforcement of the judgment against the Property, which might suggest an incapacity to pay the judgment debt and costs by other means.
Whether the Hockeys are able to sell the Property by way of enforcement is subject to the position of Macquarie Bank as the first-ranking mortgagee, which is presently unknown, the Hockeys not having taken any steps towards enforcement at this stage. Accordingly, while it may be accepted that enforcement action affecting the Property would be relevant to the balance of convenience, at this stage it is difficult to evaluate the likelihood of that prospect.
The Hockeys submitted that the balance of convenience weighed in their favour, in circumstances where the judgment relates to a liability which arose in June 2020. According to the Hockeys’ written submissions, Mr and Mrs Hockey, who are aged 67 and 70 years respectively, intended to retire following the Agreement and had to return to work in order to fund the legal proceedings. Mr Katekar submitted that the delay associated with a stay would not be remedied by the accrual of interest, which will not be recoverable if the Folleys are unable to pay the judgment debt in full. There is a necessarily contingent aspect of the latter submission in circumstances where the value of the Property and the debt position in relation to Macquarie Bank are unknown.
One further matter that I raised with Mr Folley at the hearing was the delay in filing an application for special leave. As at 18 May 2026, some 19 days after the Court of Appeal’s judgment, the application had not been filed. That fact casts doubt on the Folleys written assurances that they would prosecute any further application expeditiously. Accordingly, as matters presently stand, I consider that the balance of convenience favours the Hockeys, although not by a significant margin.
It is appropriate separately to consider the other applications that the Folleys have foreshadowed as warranting a stay, being referred to in Issues D12 and D13 of the submissions of 15 May 2026.
Issue D12 complains that the Court of Appeal erroneously assumed that the orders made on 3 July 2025, which identify Majikk and Tin-Tagel as liable for the judgment amount, were made by consent to give effect to the primary judgment. Mr Folley’s affidavit dated 15 May 2026 annexes a copy of an email sent by the Hockeys’ solicitor to the primary judge’s associate noting that only orders 4 to 6 had been consented to by the Folleys. This is an issue which the Folleys identify as being amenable to a slip rule or corrective application. Assuming for present purposes that the Court proceeded on a misapprehension as to the consent position on orders, it is unlikely that Issue D12 is of any real significance. Paragraph 157 of Price AJA’s reasons refers to this issue as “a further matter to note”. His Honour otherwise held that the Folleys did not pursue that aspect of their defence, and, had they done so, the Hockeys would have had an opportunity to amend their cross-claim to include a claim against Majikk under the mortgage agreement. Those conclusions do not depend upon the reasoning in [157]. Moreover, the same considerations relating to the balance of convenience apply, namely, there is limited risk of enforcement in the near term; and the Folleys have failed, in the several weeks since the publication of the Court’s judgment, to bring any application for review.
Issue D13 flags potential applications about conduct after the trial, concerning the sale of Danc’s rent roll. Of the little that has been said about this in the material before me, it would appear that such applications would involve claims outside the scope of the present proceedings. It would be inappropriate to grant a stay of enforcement in these proceedings on the basis of as-yet-unknown claims that may (or may not) be the subject of other proceedings.
Having regard to the above matters, I am not satisfied that the Folleys have established that the present circumstances warrant even the short stay sought pending the making of an application for special leave by the deadline in the High Court Rules. Nor does the material before me provide a sufficient basis on which I would be prepared to grant a stay for any further period.
The notice of motion should be dismissed. The Hockeys sought their costs of the notice of motion. The ordinary rule as to costs is that they follow the event and I have not discerned in the material any basis on which that rule should not be followed in the present case. Accordingly, I make the following order:
The notice of motion dated 29 April 2026 and filed on 30 April 2026 is dismissed with costs.
**********
Tin-Tagel Majikk Pty Ltd
Hockey (No 3)
[2026] NSWCA 72
(2012) 83 NSWLR 347
(1986) 161 CLR 681
(1994) 68 ALJR 196
(2016) 90 ALJR 447
The notice of motion dated 29 April 2026 and filed 30 April 2026 was dismissed with costs: [41].
For the reasons set out below, the Folleys’ notice of motion should be dismissed.
In relation to ground 8, given his Honour’s conclusions on grounds 1 to 5, Price AJA concluded that the Folleys’ contention, that the primary judge erred in finding that they had sufficient knowledge of the Hockeys’ breach to constitute an election to affirm the Agreement, was not made out: at [113]-[114].
On ground 9, his Honour concluded that neither the primary judge’s factual findings nor his Honour’s consideration of the legal issues relating to recission were in error: at [131], [137]. The Folleys argued on the appeal that practical justice required that they not be compelled to pay the vendor finance pursuant to cl 6.6(e) of the Agreement, on the basis that the Hockeys’ misleading and deceptive conduct and failure to provide a clear title precipitated the loss of the real estate business and its subsequent receivership. Price AJA observed that this argument did not appear to have been advanced below, and dismissed it on the basis that the Folleys did not establish a causal connection between Mrs Hockey’s contravening conduct (in representing that she intended to retire), or the Hockeys’ breach of cl 3.2(g) of the Agreement, and the Folleys’ loss of their business as a result of the receivership of Danc’s assets: at [138]-[140].
Ground 10 involved a contention that the primary judge erred in making or affirming orders against Majikk when it was not a party to the Agreement and its role was limited to providing security for the vendor finance: at [142]. In dismissing the ground, Price AJA concluded that although the Folleys’ defence to the cross-claim raised, at least implicitly, that Majikk was not a party to the Agreement, the argument was not pursued at trial, in which event it would have been included in the ASOI, addressed in submissions and, potentially, been the subject of an application to amend the cross-claim so as to add a claim under the mortgage that Majikk had granted: at [155]. His Honour considered that in the circumstances, the Hockeys were correct that it was not open to the Folleys to make this argument on the appeal: at [158]. In reaching this conclusion, his Honour noted that as no further reasons were given for the orders the primary judge made on 3 July 2025, which had been the subject of the respondents’ Short Minutes of Order, it was open to infer that those orders were made by consent. This meant that the Folleys had passed up another potential opportunity to have argued that Majikk should not be subject to the orders sought on the cross-claim: at [157].
The Folleys’ case on ground 11 depended on the admission of Exhibit KRF-1, which was rejected: at [161]. In any event, the emails in that exhibit would not have produced a different outcome because the emails were not relevant to the issue, being whether the Hockeys breached cl 6.6(b)(i) of the Agreement by the non-adjustment of the purchase price on completion for tax liabilities: at [161]-[162].
Ground 12 alleged that the primary judge made adverse credibility findings without affording either Mr or Ms Folley an opportunity to respond to the specific inference drawn, that they had compared notes in preparing their evidence. Price AJA concluded that the Folleys were cross-examined on the subject of whether they had conversations or agreed what to say in their affidavits, and that extensive submissions were made as to credit findings the primary judge might make in relation to Mr and Mrs Folley and Mrs Hockey: at [167]. There was no denial of procedural fairness. The emails in Exhibit KRF-5, which the Court of Appeal admitted, did not assist the Folleys and instead undermined their complaint, as the emails showed that the solicitors had provided the respective affidavits of Mr and Mrs Folley to the other before they were finalised: at [168].
By grounds 13 and 14, the Folleys sought to raise questions of breach of provisions of the Agreement that were not run below, namely, breach of cl 2.1(d) (ground 13) and breach of the warranty in cl 13.4 of Sch 4 (ground 12). Price AJA accepted the Hockeys’ submission that both grounds constituted a significant departure from the Folleys’ case at trial: at [178]-[180], [191]-[192].
The Folleys also take issue with the Court’s refusal to admit the further evidence and fresh evidence on which they sought to rely in the appeal (Issues D6, D7 and D8; Question 5). The Court considered the evidence and concluded that there was no reasonable possibility that it would have produced an outcome in the Folleys’ favour (see at [54], [95], [161]). In those circumstances, the prospect of the High Court granting special leave to consider the Court’s decision not to admit the evidence would seem to me to be insubstantial.
I note that a further two issues raised in the submissions, namely, an alleged breach of cl 3.4(a) of the Agreement (Issue D3; Question 2) and an alleged breach of the warranty in cl 9.1 by reference to the material in Sch 5 of the Agreement (Issue D9; Question 3), were not raised in the Court of Appeal. In the hearing before me, Mr Folley accepted it was “possible” that cl 3.4(a) was not addressed on the appeal. As far as I can ascertain from the judgment, it was not. Mr Folley did not agree that cl 9.1 was a new point, and I agree that cl 9.1 was raised in the Court of Appeal, but the context was an alleged breach of warranty in cl 13.4 of Sch 4 of the Agreement (ground 14), which the Court did not ultimately entertain because that point had not been raised at first instance. Additionally, the Folleys sought to take issue with submissions that the Hockeys advanced for the first time at the hearing in the Court of Appeal (Issue D10; Question 1). Mr Katekar submitted that the Court raised a concern about these submissions at the hearing, because of the lack of notice to the Folleys, and the submissions were not referred to in the judgment. The prospect of the High Court granting special leave to consider any of these matters would also appear to be insubstantial.