Cafe Citrus Bulimba, Re [1999] QSC 55

SUPREME COURT OF QUEENSLAND CHAMBERS ATKINSON J 0 S No 1903 of 1999 IN THE MATTER OF·THE PARTNERSHIP ACT and IN THE MATTER OF CAFE CITRUS BULIMBA (A FIRM) BRISBANE .. DATE 19/03/99 JUDGMENT REVISED COPIES ISSUED State Reporting Bureau Date 31! � -l!h Fl1111r, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) J247 55.12 [1999] QSC 55 -- 1 of 5 -- 190399 T1/BP17 M/T 4373/99 (Atkinson J) HER HONOUR: I will make the order as per draft which I will initial and place with the papers. so far as the stay is concerned, I will grant a stay of the orders that I have just made pending appeal and I publish my short reasons for doing so. HER HONOUR: I think it is an appropriate case where costs should follow the event and I will order that the respondent to the stay, which is the applicant in the originating summons pay the costs of and incidental to the application for the stay as agreed or to be taxed. 2 JUDGMENT 10 20 30 40 :iO -- 2 of 5 -- IN THE SUPREME COURT OF QUEENSLAND Brisbane Before the Hon. Justice Atkinson [Re: Cafe Citrus Bulimba] O.S. No. 1930 of 1999 IN THE MATTER of the Partnership Act - and- IN THE MATTER of Cafe Citrus Bulimba (a firm) REASONS FOR JUDGMENT - ATKINSON J Judgment delivered on 19 March 1999 CATCHWORDS: CIVIL PROCEDURE - application for stay pending appeal- whether special circumstances justify granting of stay - stay granted Counsel: S J Lee for the applicant A S Colavitti for the respondent Solicitors: John Monteath & Associates Solicitors for the applicant Gregg Lawyers for the respondent Hearing dates: 10, 11 and 12 March 1999 -- 3 of 5 -- IN THE SUPREME COURT OF QUEENSLAND Brisbane Before the Hon. Justice Atkinson [Re: Cafe Citrus Bulimba] O.S. No. 1930 of 1999 IN THE MATTER of the Partnership Act - and- IN THE MATTER ofCaf6 Citrus Bulimba (a firm) REASONS FOR JUDGMENT - ATKINSON J Judgment delivered on 19 March 1999 This is an application of a stay of orders made by the Court on 11 March 1999 after the hearing of this matter on 10 March and 11 March 1999 in chambers. The application for a stay was made on 12 March 1999. The application for a stay was made pursuant to 0.47 r.18 or alternatively 0.60 r.l of the Rules of the Supreme Court. 1 When the originating summons was first hear~ on 10 March 1999, a number of affidavits were read by the applicant. The respondent had not yet filed affidavit material in reply and the applicant had failed to comply with the practice direction requiring an outline of submissions. The matter was adjourned to the following day where full argument took place, although that argument was necessarily limited by the time available in chambers on that day. The respondent read five affidavits and the applicant read a further three affidavits. At this time the practice direction requiring outlines of argument was complied with, although inadequately in the case of J C Scott Constructions v Mennaid Waters Tavern Pty Ltd (No.1) [1983] 2 QdR 243, affirmed by the Full Court at p.255; Martinez v Roland [1983] 1 QdR 496, 505. -- 4 of 5 -- 2 the applicant. Nevertheless, after hearing oral argument, I was satisfied that I had jurisdiction to and should in the circumstances appoint an interim receiver2, particularly in view of the many disputes between the parties. I gave short ex tempore reasons for my decision. On 12 March 1999, on the application for the respondent, I made orders granting an interim stay until I gave a decision on whether a stay ought to be granted pending appeal. I believe it is appropriate that I make the order granting a stay pending appeal. This is in spite of my view that an interim receiver ought to be appointed and directions given for the orderly conduct of the resolution of the factual disputes between the parties. I am prepared to grant the stay on the undertaking offered to the Court on 12 March 1999 to keep proper books of account and records pending the trial of this proceeding. The special circumstance which justifies the grant of a stay in this case3 is that the successful applicant will be deprived of the fruits of his appeal if a stay of execution is not granted, as it is likely that the sale of the business, alleged to be the property of the partnership, would be sold by the receiver. The stay is granted for reasons relevant to the enforcement of the orders and not for reasons which go to their validity or correctness. 4 However it could not be said in this case that there is no prospect of success on the appeal. 2 3 4 See Lamerandv Lamerand (No.1) (1960) 80 WN(NSW) 198; Tate v Barry (1928) SR(NSW) 380 at 383. J C Scott ConstnlCtions v Mermaid Waters Tavern Pty Ltd (No.1) (supra) at 246. J C Scott Constructions v Mermaid Waters Tavern Pty Ltd (No.1) (supra) at 248. -- 5 of 5 --