Eamon Pty Ltd, Rador Pty Ltd & Blackedged Pty Ltd v Sanwa Home Australia (Formerly Balfield) Pty Ltd [1992] QCA 1

[1992] QCA 001 IN THE COURT OF APPEAL OF THE SUPREME COURT OF QUEENSLAND Before The President Mr Justice McPherson Mr Justice Davies NO. 690 OF 1991 BETWEEN: EAMON PTY. LTD. (First Plaintiff) First Respondent AND: RADOR PTY. LTD. (Second Plaintiff) Second Respondent AND: BLACKEDGED PTY. LTD. (Third Plaintiff) Third Respondent AND: SANWA HOME AUSTRALIA (FORMERLY BALFIELD) PTY. LTD. (Defendant) Appellant REASONS FOR JUDGMENT OF THE COURT Delivered the 31st day of January, 1992 PRACTICE - STAY - Application by purchaser ordered to perform contracts for stay of execution pending appeal to High Court - whether Court has jurisdiction - whether balance of convenience favours stay - whether stay ought be granted in exercise of wider discretion. Counsel: Mr D.F. Jackson Q.C. with Mr Sullivan for the applicant Mr O'Shea for the respondent Solicitors: Morris Fletcher and Cross for the Applicant Corrs Chambers Westgarth for the Respondent Hearing date 28th January 1992 -- 1 of 5 -- IN THE COURT OF APPEAL OF THE SUPREME COURT OF QUEENSLAND Before The President Mr Justice McPherson Mr Justice Davies NO. 690 OF 1991 BETWEEN: EAMON PTY. LTD. (First Plaintiff) First Respondent AND: RADOR PTY. LTD. (Second Plaintiff) Second Respondent AND: BLACKEDGED PTY. LTD. (Third Plaintiff) Third Respondent AND: SANWA HOME AUSTRALIA (FORMERLY BALFIELD) PTY. LTD. (Defendant) Appellant REASONS FOR JUDGMENT OF THE COURT Delivered the 31st day of January, 1992 The Applicant is a purchaser which has been ordered to perform three contracts. A Judge of the Court declared that the contracts are valid and subsisting and ought to be specifically performed and carried into execution, an appeal was dismissed by the Full Court and another Judge of the Court subsequently made ancillary orders, including orders for completion on 3rd February, 1992, and giving leave to any party to give a notice making time of the essence. The Applicant then changed solicitors and lodged an application for special leave to appeal to the High Court of Australia against the decision of the Full Court. The application for special leave to appeal will not be heard until April, 1992. The present application is for a stay of execution of the judgment of the Full Court and the -- 2 of 5 -- ancillary orders (which remain unchallenged), pending the determination by the High Court of the application for special leave to appeal. The present application faces a number of obstacles which it is unnecessary to consider. Thus, for example, the source of this Court's jurisdiction and power to grant the stay was not demonstrated, but appeared to be asserted to be either sub-section 4(6) of the Judiciary Act, 1876, or the Court's inherent jurisdiction: Jennings Constructions Ltd. v. Burgundy Royale Investments Pty. Ltd. (No.1) (1986) 161 CLR 681. It was also contended without authority (unless the proposition is implicit in the judgment in Manfal Pty. Ltd. (In Liq.) v. Trade Practices Commission (1990) 65 ALR 256) that the stay could be granted in respect of the ancillary orders although the application for special leave to appeal only relates to the decision of the Full Court. Nor was authority cited in connection with the assertion that a stay with an effective operation could be granted in respect of the declaration that the contracts ought to be specifically performed and carried into execution. If such problems be put to one side and it also be assumed in favour of the Applicant that it has a sufficient prospect of success in the High Court, it remains for it to demonstrate, at the very least, that the balance of convenience lies in favour of granting the stay. More may be necessary if, as is sometimes suggested, a stay should only be granted in exceptional circumstances. It was not submitted by the Applicant that the balance of convenience favours every purchaser ordered to perform a contract by a date which will pass before an appeal is determined. The additional consideration in this instance was said to be the ancillary order giving leave for a party to give a notice making time of the essence. It was submitted that, in such circumstances, if the applicant completed the contracts on 3 February in accordance with the ancillary orders, the High Court proceedings would be -- 3 of 5 -- nugatory if the applicant was granted special leave to appeal and succeeded on the appeal because the Applicant's "voluntary" completion of the contracts would preclude the grant of effective relief by the High Court. The Court was told that no authority could be found either in favour of or against this rather surprising contention which seems neither logical nor correct in principle. Indeed, the Applicant's premise implicitly contradicts its need for a stay, at least at this time. If the Applicant is not obliged to perform the contracts until a time for completion is effectively established by a notice making time of the essence, the operation of the ancillary orders need not be stayed in order to protect the Applicant's possibility of an effective judgment in the High Court. If, on the other hand, the Applicant is obliged to complete the ancillary orders either on 3 February or on whatever date is fixed by a notice making time of the essence, then its position is no different from any other purchaser obliged to complete in accordance with an order of the court notwithstanding the existence of an appeal. If it parts with the purchase moneys on settlement it will receive in return a title to the land purchased. In either event, a stay is inappropriate. The conclusion that the application should fail is reinforced by other considerations if a wider discretion is involved. For example, some of the ancillary orders, including the order fixing 3 February as the date for completion, were made by consent or at least without objection. Further, some of the obligations imposed upon the Respondents by the ancillary orders have already been performed. In particular, the hotel formerly situated on the subject land has been demolished by the Respondents in accordance with the terms of the contracts and the order. It is unnecessary to pursue other matters, such as the Court's continued control of the performance of the contracts, including the -- 4 of 5 -- time for completion, and its power to determine what, in all the circumstances, is a reasonable period if a notice is given purporting to make time of the essence. The application is dismissed, with costs. -- 5 of 5 --