SOLID TIMES PTY LTD, ONE DIRECTION REAL ESTATE PTY LTD v WANG (No 2) [2026] SADC 85

Second Applicant: ONE DIRECTION REAL ESTATE PTY LTD Counsel: MR J NAPIER - Solicitor: ADELTA LEGAL First Respondent: MR FENG WANG Counsel: MR T HUI - Solicitor: NATHAN WHITE LAWYERS Hearing Date/s: 19/06/2026 File No/s: CIV-22-010562 B DISTRICT COURT OF SOUTH AUSTRALIA (Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. SOLID TIMES PTY LTD, ONE DIRECTION REAL ESTATE PTY LTD v WANG (No 2) [2026] SADC 85 Judgment of his Honour Judge Burnett 20 July 2026 APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - ENFORCEMENT OF JUDGMENTS AND ORDERS This judgment concerns the appropriate forum for the bringing of a stay application pending an application for special leave to the High Court. The respondent, Mr Wang, was the owner of a property at 77 Mackinnon Parade, North Adelaide (the Property). The second applicant, One Direction Real Estate Pty Ltd, brought a claim in this Court against the respondent, seeking a declaration that the respondent held the Property on a constructive trust for the benefit of himself and the second applicant. The second applicant was successful in that claim, and the Court made orders declaring that the respondent held the Property as a constructive trustee. The Court also made orders relating to the terms of that constructive trust. Consequential orders were made that the Property be sold by way of public auction and for the distribution of the proceeds of that sale. Pursuant to these orders, an agent was appointed to conduct the sale. A date for the of the public auction has not yet been set. The respondent appealed against the judgment to the Court of Appeal. That appeal was dismissed. The respondent has made an application to the High Court for special leave to appeal. That application has not yet been heard. By an interlocutory application made on 4 May 2026, the respondent has sought orders that the judgment of the Court declaring the constructive trust and the orders for the sale of the Property be stayed pending determination of the application for special leave. -- 1 of 8 -- Held: (1) The Court declines to make an order on the respondent’s application for a stay. The appropriate forum for the hearing of the application for a stay is the Court of Appeal: Jennings Constructions Ltd v Burgandy Royale Investments Pty Ltd (No 1)(Burgandy Royale) (1986) 161 CLR 681; Mercanti v Mercanti (2017) 340 ALR 225 applied. (2) Both the Court of Appeal and this Court have the power to grant a stay under UCR 12.1(2)(o) and 215.4 and s 17 of the Enforcement of Judgments Act 1991(SA). (3) It is more appropriate that the stay application be heard at first instance by the Court of Appeal because: (1) that is consistent with the guiding principle set out in Burgandy Royale; (2) it should be for the Court of Appeal to determine whether there are substantial prospects that special leave to appeal will be granted from its judgment. It would be contrary to the nature of appellate jurisdiction for this Court to interfere with orders made by the Court of Appeal or to consider a challenge to that judgment: Trade Practices Commission v Manfal Pty Ltd (1990) 99 ALR 783 applied; (3) as matter of practicality, where the orders made on a stay application, might themselves be the subject of appeal, there is an efficiency in the application being heard by the Court of Appeal. (4) The Court of Appeal may determine that the application in all of the circumstances should be heard by this Court: Johnston v Aldridge [2020] SADC 10 considered. Enforcement of Judgments Act 1991 (SA) s 17; Land and Business (Sale and Conveyancing Act) 1994 (SA) s 24G; Uniform Civil Rules 2020 (SA) rr 12.1(2)(o) and 215.4, referred to. Department of Communities and Justice v Hays [2023] FedCFamCif 82; Duke Group Ltd (in liq) v Pilmer [1999] SASC 373; Fitzgerald v Deloitte Services Pty Ltd (No 2) [2017] NSWCA 152; Griffiths v Australian Postal Commission (1987) 87 FLR 139; Hendriks v El Dik (No 5) [2016] ACTSC 302; Hussain v Haynoum [2014] NSWCA 173; eJennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681 ; Johnston v Aldridge [2020] SADC 110; Klein v Mochlin (No 2) [2024] VSCA 223; Mann v Patterson Constructions Pty Ltd [2018] VSCA 313; Mercanti v Mercanti (2017) 340 ALR 225; Peity Developments Pty Ltd v Cumberland City Council (No 2) [2024] NSWCA 196; Reinhart v Walker (2012) 83 NSWLR 347; Ren v Strata Corporation [2024] SASCA 120; Trade Practices Commission v Manfal Pty Ltd (1990) 27 FCR 284 ; Wang v One Direction Real Estate Pty Ltd Pty Ltd [2026] SASCA 28, applied. -- 2 of 8 -- SOLID TIMES PTY LTD, ONE DIRECTION REAL ESTATE PTY LTD v WANG [2026] SADC 85 CIVIL Introduction 1 This judgment involves a consideration of the appropriate forum for the bringing of a stay application pending an application for special leave to the High Court or, if special leave is granted, pending an appeal to that court. 2 The respondent, Mr Wang, is the registered proprietor of the property at 77 Mackinnon Parade, North Adelaide (the Property). The applicant, One Direction Real Estate Pty Ltd (the applicant or One Direction), brought a claim in this Court against the respondent, seeking a declaration that the respondent holds the Property on a constructive trust for the benefit of himself and the applicant. 3 The respondent denied the existence of the constructive trust and also disputed the terms of the constructive trust. 4 After a trial, the Court made orders on 25 November 2025 declaring that the respondent held the Property by way of constructive trust for benefit of himself and the applicant. The terms of the trust were that the Property be sold and that the net proceeds be applied: (a) to the discharge of the mortgage over the Property; (b) then to refund the contributions made by the applicant and the respondent. The contributions to be repaid to the respondent included the contributions made by the first applicant, Solid Times Pty Ltd (who settled with the respondent and took no part in the trial); (c) to distribute the surplus in the following proportions: 25% as to the applicant and 75% to the respondent. 5 The Court also made orders as to how that sale process should proceed. The Property was ordered to be sold by way of public auction. An agent was appointed to conduct that sale process which is ongoing. A date has not yet been fixed for the holding of the auction. 6 The respondent appealed against the judgment of the Court. On the appeal, the respondent contended that the applicant should be denied equitable relief (and no declaration be made that there was a constructive trust) because the applicant had not come to the court with clean hands.1 The respondent further contended that s 24G of the Land and Business (Sale and Conveyancing Act) 1994 (SA) rendered 1 Wang v One Direction Real Estate Pty Ltd Pty Ltd [2026] SASCA 28, [3]. -- 3 of 8 -- [2026] SADC 85 2 the joint venture by which the applicant acquired its interest in the Property void or alternatively rendered the applicant’s interest in the joint venture void.2 7 On 26 March 2026, the Court of Appeal dismissed the respondent’s appeal. On 23 April 2026, the respondent filed an application for special leave to appeal to the High Court. That application has yet to be heard. 8 In the meantime, the applicant has sought to proceed with the process for the sale of the Property. A dispute arose as to the setting of an appropriate reserve price. Following an argument, this Court has fixed a reserve price for the Property. 9 By an interlocutory application made on 4 May 2026, the respondent has sought orders pursuant to r 215.4 of the Uniform Civil Rules 2020 (SA)(UCR) that the orders of this Court declaring the constructive trust and for the sale of the Property be stayed pending determination of the application for special leave. 10 The applicant opposes the application both as a matter of procedure and in substance. The applicant contends that the Court of Appeal is the appropriate forum for the hearing of the application. 11 Both the Court of Appeal and this Court, as the trial court, have jurisdiction to grant a stay. The Court of Appeal has an inherent jurisdiction to grant a stay because it is the court that entered judgment and it is from that court that the respondent now seeks special leave.3 This Court has power to grant a stay because of UCR 12.1(2)(o) and 215.4 and s 17 of the Enforcement of Judgments Act 1991(SA). In each of these provisions, the trial court comes within the description of the term “Court”. 12 The question for determination is whether this Court is the appropriate forum to decide whether a stay should be granted or whether the stay application should be brought before the Court of Appeal. If the Court determines that it is the appropriate forum, then the merits of the stay application must be determined. The appropriate forum 13 The guiding principle as to the appropriate forum for the hearing of stay applications pending an application of special leave to appeal or appeal to the High Court is set out in the judgment of Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (Burgundy Royale).4 Brennan J held: When an application for special leave to appeal is made to this Court, a jurisdiction to stay may be exercised by the Court below and it is to that Court - the Court in which the matter is pending and which is familiar with the matter - that an application to stay should first be made. In this case the Court of Appeal, not wishing to pre-empt the view that may be expressed in this Court, tailored its order accordingly. In future, there should be no 2 Ibid. 3 Duke Group Ltd (in liq) v Pilmer [1999] SASC 373, [7] per Doyle CJ. 4 (1986) 161 CLR 681; [1986] HCA 84. -- 4 of 8 -- [2026] SADC 85 3 inhibition on the Court in which the matter is pending framing a stay order, if a stay be appropriate, to avoid the necessity for application to this Court. 14 That statement of principle suggests that it will generally be appropriate to bring the stay application in the court below, that is Court of Appeal or the court whose decision is the subject of the application for special leave. That position was reaffirmed by Keifel J (as she then was) in Mercanti v Mercanti (Mercanti).5 In Mercanti, Kiefel J held that Burgandy Royale was authority for the proposition that where there is an application for special leave, a jurisdiction to stay may be exercised by the court below and that an application should be made in the first place to that court.6 Mason CJ made a similar observation in Smith Kline & French Laboratories (Australia) v Secretary to the Department of Community Services & Health.7 15 That procedure was followed in Ren v Strata Corporation,8 where Bleby J, exercising as a single judge the powers of the Court of Appeal, refused an application for a stay pending determination of the application for special leave to appeal. 16 The practice of making stay applications to the intermediate court of appeal, where there has been an application to the High Court for special leave, has been widely adopted in other states.9 A number of those cases, involved applications from decisions from cases where the relevant Court of Appeal had dismissed the appeal from the trial judge, such that the orders of the trial judge remained the operative orders (see, for example, Fitzgerald v Deloitte Services Pty Ltd (No 2)10, Mann v Patterson Constructions Pty Ltd).11 17 The respondent relied on the decision in Johnston v Aldridge12 to contend that this Court should deal with the stay application. That case involved consideration of a stay pending determination of an application for special leave to the High Court. His Honour, Judge O’Sullivan, observed that when the application for a stay was first made to this Court, he referred the matter to the Full Court but that the matter was referred back to him for determination.13 5 (2017) 340 ALR 225, [9] and [13]; [2017] HCA 1. 6 Ibid, [9]. 7 (1991) 65 ALJR 360, [20]; [1991] HCA 123. 8 [2024] SASCA 120. 9 See for example, Klein v Mochlin (No 2) [2024] VSCA 223; Peity Developments Pty Ltd v Cumberland City Council (No 2) [2024] NSWCA 196; Fitzgerald v Deloitte Services Pty Ltd (No 2) [2017] NSWCA 152; Reinhart v Walker (2012) 83 NSWLR 347; [2012] NSWCA 1; Mann v Patterson Constructions Pty Ltd [2018] VSCA 313; 10 [2017] NSWCA 152. 11 Ibid. 12 [2020] SADC 110. 13 Ibid, [15]. -- 5 of 8 -- [2026] SADC 85 4 18 The respondent also placed reliance on the decisions in Hendriks v El Dik (No 5),14 Griffiths v Australian Postal Commission15 and Hussain v Haynoum16 for the proposition that it was appropriate that a stay application be dealt with at first instance before the trial judge who has a better understanding of the particular circumstances of the case rather than a new judge. However, those cases all involved an appeal from the primary judge to the Full Court or Court of Appeal and not circumstances where there was an application for special leave. Therefore, those cases do not assist the determination of this application for a stay where there is an application for special leave to the High Court. 19 Although the respondent did not expressly raise the point, there have been some attempts in the Family Court to distinguish Burgandy Royale and suggest that it does not apply because there “the matter is not pending” in any intermediary court of appeal because that court is functus officio, having determined the appeal.17 The matter cannot be pending when final orders have been made.18 That would be true of all appeals, (whether the appeals are allowed or dismissed), except for interlocutory appeals. Therefore, that cannot be the way in which Brennan J was referring to a matter being pending in Burgandy Royale. This Court is also functus officio in relation to the substance of the dispute (as distinct from the consequential orders).19 I consider that Brennan J was referring to the intermediate court of appeal as the court in which the matter was pending when it heard the appeal. Determination of the appropriate forum 20 The applicant placed reliance on the decision in Burgundy Royale and contended that the application should first be made to the court below the High Court, in this case, the Court of Appeal, being the court where the matter is pending. 21 The respondent contended that this Court was the appropriate forum to hear the stay application as it was most familiar with the matter and that its orders were the operative orders, because the appeal was dismissed. The respondent further contended that this Court remained seized of the matter in that there remained issues and controversies relating to the sale process. 22 I consider that the application for a stay where there is an application for special leave should first be made to the Court of Appeal. The Court of Appeal may decide that in the particular circumstances of the case, it might be appropriate to refer the matter back to the trial Court (as the Full Court did in Johnston v Aldridge). 14 [2016] ACTSC 302, [10]. 15 (1987) 87 FLR 139. 16 [2014] NSWCA 173, [67]. 17 Department of Communities and Justice v Hays [2023] FedCFamC1F 82. 18 Ibid, [15] 19 Ibid, [3] -- 6 of 8 -- [2026] SADC 85 5 23 I have come to that decision for the reasons set out below. 24 First, the guiding principle, as set out in Burgundy Royale, is that stay applications pending determination of an application for special leave be made first to the Court of Appeal or Full Court. That principle has been widely applied. I consider that the procedure adopted in Johnston v Aldridge is consistent with that principle. 25 Secondly, in Burgandy Royale, Brennan J made the point that an application for 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 to exist. It must be considered whether there is a substantial prospect that special leave to appeal will be granted.20 That is not to be understood as requiring that the prospects of success on the application for special leave are high-it is sufficient if the Court finds that the prospects of a grant of special leave are not insubstantial.21 It is preferrable, at least at first instance, that these matters are considered by the Court of Appeal. Such an exercise involves an identification of how it is contended that the Court of Appeal erred. That is a task that is best performed by the Court of Appeal, rather than the trial Judge. Further, in cases where the Court of Appeal has made positive orders, this Court should not interfere with those orders. French J (as the then was) made that point in Trade Practices Commission v Manfal Pty Ltd.22 It would be contrary to nature of appellate jurisdiction for the trial Court to interfere with the orders made on appeal by the Court of Appeal. There is no reason why a different position should be taken because the Court of Appeal dismissed the appeal. 26 Thirdly, as a matter of practicality, a decision on a stay application is subject to appeal. If the application is determined by this Court, being an interlocutory matter, an appeal would lie first to a single judge of the Supreme Court and then to the Court of Appeal. That creates a degree of duplication and inefficiency and cost and expense if appeals are pursued. 27 It follows that I reject the submission of the respondent that this Court is best placed to deal with the stay application because it is most familiar with the subject matter of the dispute. The criteria for the granting of a stay is set out in Burgandy Royale,23 namely: (1) whether is a substantial prospect that special leave will be granted; (2) whether the applicant has failed to take whatever steps are necessary to seek a stay from the Court in which the matter is pending: 20 (1986) 161 CLR 681, [7]; [1986] HCA 84. 21 Mercanti v Mercanti (2017) 340 ALR 225; [2017] HCA 1, [11]. 22 (1990) 99 ALR 783, 787. 23 Ibid. -- 7 of 8 -- [2026] SADC 85 6 (3) whether the grant of a stay will cause loss to the respondent; (4) where the balance of convenience lies, do not place the trial Court in a better position than the appeal court to determine the application. 28 I also reject the submission of the respondent that this Court should determine the application because the operative orders remain those made by this Court because the Court of Appeal dismissed the appeal. The relevant judgment that is the subject of the application for special leave is the judgment of the Court of Appeal. If the Court of Appeal had in fact made the operative orders, there would be even less reason to consider that this Court should stay the appeal court’s orders. 29 I also reject the submission that the matter should be dealt with before this Court because that would be more efficient as the Court had heard argument on the stay application. The applicant has always taken the position that the stay application should be heard by the Court of Appeal and that court was the appropriate forum. The filing of the application in this Court does not create some de facto justification for the court to determine the application. If that was the case, then it would be a simple matter for a party to choose its own forum. 30 There could be circumstances where because of the urgency of a matter, that the matter be dealt with by this Court. That does not arise in the present case. Any prejudice to the respondent will not arise, at the earliest, until a contract has been entered into for the sale of the Property to a third party. Even then, any prejudice might not arise until settlement when the proceeds of sale are distributed, given that the Property was purchased as an investment property and part of a joint venture. It is not a property which the respondent has personal attachment. Under the orders made by the Court, any sale, unless agreed to by both the applicant and the respondent, must be way of public auction. No date for a public auction has been set. 31 At the hearing of the application for a stay heard on 19 June 2026, the Court further ordered that the applicant notify the respondent within three day of setting of the auction date. In these circumstances, it is not necessary for the Court to make any interim order for a stay, even if it otherwise considered that such an order might be necessary. Conclusion 32 Given my findings that the application for the stay should be made first to the Court of Appeal and the possibility that the Court of Appeal could refer the matter back to this Court, it is not appropriate that I express any opinions as to the merits of the application. 33 In these circumstances, rather than dismiss the application, I will make no order on the application. -- 8 of 8 --