6 In England the position appears to be that as a matter of practice a stay of a winding up order is never granted on the ground that an appeal is pending, [see Re A & BC Chewing Gum Ltd; Chewing Gum Inc v Coakley [1975] 1 All ER 1017, 1029]. However, in Australia a more liberal approach prevails and a stay of winding up order may be granted where the factors referred to in Kalifair v Digi-Tech are satisfied, [see Masri Apartments v Perpetual Nominees, [24]].
7 In my view, the defendants have not begun to show that the proposed appeal would raise serious issues for the determination of the appellate court. They have not, at this stage, begun to articulate a ground of appeal. They say that they have not had an opportunity to do so because my full reasons were published only this morning, but if it were contemplated that an application for a stay were to be made, ample disclosure of my reasoning took place on 15 June. Nonetheless, I would not hold them out from an opportunity further to consider the question of articulating a ground of appeal if I thought that significant prejudice could be occasioned by not granting a stay at this stage.
8 As Mr White points out, although my decision turned on preferring Mr Visnic's version over that of Mr Sywak, and although in parts of the reasoning with reference to Mr Sywak's evidence, I was influenced by the inconsistencies and changes of position in his evidence as he was in the witness box - particularly his evidence on the 1 May transaction - demeanour did not of itself play a significant role, and my conclusion was based on the internal inconsistencies of Mr Sywak's evidence and the relationship which the cases of each party bore to what seemed to me to be the more objective evidence. An appeal from my decision would therefore not face the obstacle of Abalos v Australian Postal Commission (1990) 171 CLR 167, at least in its full rigour.
9 Nonetheless, all that has been said of this case at this stage is that it is possible that the Court of Appeal might reach a different view of the facts on its own analysis of the evidence.
10 So far as the question of prejudice is concerned, the companies have been in provisional liquidation since the conclusion of the evidence in about July of last year. If a stay were granted, they will remain in provisional liquidation. If a stay not be granted, it is possible that the liquidator would proceed with the realisation of assets - including the two significant assets, namely the real property at Oran Park and at Wetherill Park. No one suggested that any particular urgency attends the sale of that real property, although, given a very opportunity to address the issue, evidence might emerge, for example, that there were current development proposals at Oran Park which might make it an attractive time to sell. However, that, to some extent, is met by the defendants' offer of the usual undertaking as to damages as a condition of any stay.
11 The parties have not had a full opportunity to argue the issues relevant to a stay application. It seems to me that, despite the circumstance that they might well have availed themselves of that opportunity today I should not shut them out from it. At this stage, however, as the liquidator indicates that he will submit to the injunctions proposed in respect of the sale of the Oran Park and Wetherill Park properties, I do not see that any significant other prejudice will be occasioned by failing to grant a stay at this stage.
12 Upon the first defendant by his counsel giving to the Court the usual undertaking as to damages, I order that until 31 July 2007 or further order Michael Jones in his capacity as liquidator of Adellos Pty Ltd, not sell or take any step to market or sell the property described in Folio Identifier 293/708154A, being the property situate at and known as 1005 Cobbitty Road, Oran Park, in the State of New South Wales, except upon having given seven days written notice of his intention so to do to the solicitors for the first defendant.
13 Upon the first defendant by his counsel giving to the Court the usual undertaking as to damages, I order that until 31 July 2007 or further order Michael Jones, in his capacity as liquidator of Castlove Pty Ltd, not sell or take any step to market or sell the property described in the Folio Identifier 10/747233, being property situate at and known as lot 100 Elizabeth Street, Wetherill Park, in the State of New South Wales, except upon having given seven days written notice of his intention so to do to the solicitors for the first defendant.
14 I make the following further orders:
- Adjourn the proceedings to Tuesday 31 July 2007 at 9.30am before me.
- Order that time within which notice to appeal from the orders made on 15 June 2007 herein may be filed be extended up to and including 31 July 2007.
- Direct that in the event the defendants seek any continuation of the orders made today, or any further stay in respect of the orders made on 15 June, they file and serve Notice of Motion by 20 July 2007, such motion to be returnable on 31 July 2007 at 9.30am before me.
- Direct that the Exhibits be returned.
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