ALBARRAN, KIJURINA & ORS v DIGIORGIO FAMILY WINES PTY LTD, RESCHKE PTY LTD & ORS [2026] SASCA 80

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE CHIEF JUSTICE KOURAKIS) CIV-20-003024 First Appellant: RICHARD ALBARRAN Counsel: MR J EVANS KC WITH MR I THOMAS - Solicitor: ADLV LAW Second Appellant: BRENT TREVOR-ALEX KIJURINA Counsel: MR J EVANS KC WITH MR I THOMAS - Solicitor: ADLV LAW Third Appellant: DAVID ALLAN INGRAM Counsel: MR J EVANS KC WITH MR I THOMAS - Solicitor: ADLV LAW First Respondent: DIGIORGIO FAMILY WINES PTY LTD Counsel: MR B ROBERTS KC WITH MR G HALLAHAN - Solicitor: O'HALLORAN LAW Second Respondent: RESCHKE PTY LTD Third Respondent: SIMON RICHARD MILLER Hearing Date/s: 16/07/2026 File No/s: CIV-26-008129 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: 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. ALBARRAN, KIJURINA & ORS v DIGIORGIO FAMILY WINES PTY LTD, RESCHKE PTY LTD & ORS [2026] SASCA 80 Ruling of the Honourable President Livesey (ex tempore) 16 July 2026 CORPORATIONS - RECEIVERS, CONTROLLERS AND MANAGERS - DUTIES AND LIABILITIES - LIABILITIES - COSTS ORDER AGAINST RECEIVER APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - STAY OF PROCEEDINGS The appellants have applied for a stay pending the determination of their appeal concerning orders for judgment made on 5 June 2026. The primary judge ordered the appellants to pay amounts totalling just under $1.7 million to the first respondent, DiGiorgio Family Wines Pty Ltd (DiGiorgio). Those orders are two of a number made by the primary judge following long-running litigation concerning a dispute between DiGiorgio and the appellants about the entitlement to payment of funds following a sale of assets in connection with the receivership of the second respondent, Reschke Pty Ltd (Reschke). The appellants are the joint receivers and managers of Reschke. DiGiorgio claimed priority over a fund constituted by the proceeds from the sale of wine stored in its winery. The wine was produced by DiGiorgio after it was engaged by Reschke to crush grapes and store the wine under what was described as a grape processing agreement entered into in 2015. -- 1 of 9 -- DiGiorgio claimed a workers’ lien over the wine, together with a warehouse storage lien concerning its storage. In substance, the appellants contend that the primary judge erred as a matter of law in finding that they became personally liable to DiGiorgio under s 419(1) of the Corporations Act 2001 (Cth) for amounts payable by Reschke under the grape processing agreement with DiGiorgio, secured by its liens. The appellants also seek a declaration that they are entitled to an equitable lien over the sum of $1.47 million which ranks in priority ahead of any security interest of DiGiorgio. The affidavit evidence does not provide any detailed explanation or background to this litigation or the stay. Held, granting a stay, subject to the provision of an appropriate bank guarantee by the appellants, together with an undertaking to diligently prosecute their appeal: 1. It is neither necessary nor appropriate to endeavour to rule on the contentions advanced by the parties, even in a preliminary way. It is sufficient to observe that there appears to be a bona fide appeal with some prospect of success, depending upon the view the Court takes about the operation and effect of s 419(1) of the Corporations Act 2001 (Cth), and the potential conflict or competition between the respective liens relied upon by the parties. 2. In circumstances where there is no information about the trading and financial position of DiGiorgio, from either party, it is necessary to address what is before the Court in a pragmatic way. The Court must balance the apparent prospects on appeal against the proposition that there is at least some risk to the appellants if payment is now made. It is the kind of real risk that can arise with many corporate litigants, no matter how satisfactory their financial position appears to be. 3. The interests of justice are best served here by maintaining the status quo pending appeal, provided adequate security is furnished by the appellants. 4. A stay will be granted subject to the provision of an appropriate bank guarantee, which incorporates an allowance for post-judgment interest, upon the condition that the appellants undertake to diligently prosecute their appeal before this Court of Appeal. 5. It is appropriate to reserve the question of costs to allow the Court of Appeal to address all costs with the benefit of having determined the outcome of the appeal. Companies (Queensland) Code (Qld) s 324(1); Corporations Act 2001 (Cth) s 419(1); Uniform Civil Rules 2020 (SA) rr 212.5, 215.4, referred to. AGL Victoria Pty Ltd v Lockwood & Ors (2003) 10 VR 596; Blatch v Archer (1774) 98 ER 969; Brackenridge v Bendigo and Adelaide Bank Ltd [2020] SASC 235; Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464; Chimaera Capital Ltd v Pharmaust Ltd (2007) 64 ACSR 332; Food and Beverage Australia Ltd v PJ Nash Pty Ltd (No 2) [2020] SASC 82; Franklin v South Australian Housing Authority [2024] SASCA 3; Georganas v Georganas [2024] SASCA 1; Hackney Tavern Nominees v McLeod (1983) 33 SASR 590; Karas v LK Law Pty Ltd (Costs of Stay Application) [2026] FCA 859; Lesses v Maras (No 2) [2016] SASC 140; Luca v Maros & Ors [2025] SASCA 76; Marschall v Elson (No 2) (2023) 22 ASTLR 490; McMahon’s (Transport) Pty Ltd v Ebbage [1999] 1 Qd R 185; Playford Vineyard Pty Ltd v Wishford Nominees (No 2) [2018] SASC 152; Re British Investments and Development Co. Pty Ltd [1979] ACLC 32; Re Quirky Mama Productions Pty Ltd [2021] QSC 345; Re Universal Distributing Co Ltd (in liq) (1933) 48 CLR 171; Redbubble Ltd v Hells Angels Motorcycle Corporation (Australia) Pty Ltd [2022] FCA 1039; Ryan v Urban Construct (SA) Pty Ltd (No 2) (2012) 114 SASR 410; Teachers Registration Board v Kourlas [2024] SASCA 88, considered. -- 2 of 9 -- ALBARRAN, KIJURINA & ORS v DIGIORGIO FAMILY WINES PTY LTD, RESCHKE PTY LTD & ORS [2026] SASCA 80 Court of Appeal – Civil – Application LIVESEY P (ex tempore): Introduction 1 The appellants have applied for a stay pending the determination of their appeal concerning orders for judgment made on 5 June 2026, under which they must pay amounts totalling just under $1.7 million to the first respondent, DiGiorgio Family Wines Pty Ltd (DiGiorgio). 2 Those orders are two of a number made by the primary judge following what appears to be long-running litigation concerning a dispute between DiGiorgio and the appellants about the entitlement to payment of funds following a sale of assets in connection with the receivership of the second respondent, Reschke Pty Ltd (Reschke). 3 The appellants are the joint receivers and managers of Reschke.1 The third respondent is the liquidator of Reschke, who appears to have taken no part in this litigation. Background 4 DiGiorgio claimed priority over a fund constituted by the proceeds from the sale of wine stored in its winery. The wine was produced by DiGiorgio after it was engaged by Reschke to crush grapes and store the wine. That occurred over some years, under what was described as a grape processing agreement entered into in 2015. 5 Apparently, the last delivery of grapes from which wine was produced was made to DiGiorgio in 2018. DiGiorgio claimed a workers’ lien over the wine, together with a warehouse storage lien concerning its storage. The relevant receivership spanned 2019 and 2020. 6 In a ruling delivered on 2 June 2025, culminating in orders made on 5 June 2026, the primary judge found in favour of DiGiorgio and against the Reschke receivers and, by paragraphs 3 and 4 of those orders, entered judgments against them jointly and severally. 7 The cross-claim by the appellants was dismissed. Directions were made regarding the determination of costs. 1 I was informed that there is a second appeal concerning the finding that DiGiorgio was entitled to the benefit of two liens, being a workers’ lien and a warehouse storage lien. -- 3 of 9 -- [2026] SASCA 80 Livesey P 2 The stay application 8 I have very little information available to me. According to the very brief affidavit from the solicitor for the appellants, who has been informed by one of the Reschke receivers, they have “no visibility on the finance” of DiGiorgio. The appellants are apprehensive that, should they succeed on appeal, there is a risk that they will be unable to recover the judgment sums. 9 In order to address that risk, the appellants propose that, should a stay be granted, they will be in a position to proffer a bank guarantee in the amount of the judgment sums within 14 days. 10 The affidavit does not provide any further explanation or background to this litigation. I am not sure, for example, why the proffering of a guarantee must be made subject to the grant of a stay. Likewise, it is not clear to me why 14 days from the date of any stay is required. 11 Around three weeks have passed since this application was made and the affidavit was filed. I have no information from the appellants about what steps have been taken, if any, to confer with DiGiorgio or procure an appropriate bank guarantee, apart from some correspondence including a letter sent to DiGiorgio on Wednesday afternoon, asking about its capacity to make repayment. The grounds of appeal 12 In substance, the appellants contend that the primary judge erred as a matter of law in finding that they became personally liable to DiGiorgio under s 419(1) of the Corporations Act 2001 (Cth) for amounts payable by Reschke under the grape processing agreement with DiGiorgio, secured by its liens. Section 419(1) provides: Liability of controller (1) A receiver, or any other authorised person, who, whether as agent for the corporation concerned or not, enters into possession or assumes control of any property of a corporation for the purpose of enforcing any security interest is, notwithstanding any agreement to the contrary, but without prejudice to the person’s rights against the corporation or any other person, liable for debts incurred by the person in the course of the receivership, possession or control for services rendered, goods purchased or property hired, leased (including a lease of goods that gives rise to a PPSA security interest in the goods), used or occupied. 13 The appellants contend that a receiver does not incur a debt for the purposes of s 419(1) unless the receiver creates or assumes responsibility for the liability.2 Moreover, it is their case that a receiver cannot be made liable for a debt which would have existed in any event. As Pincus JA explained in McMahon’s (Transport) Pty Ltd v Ebbage regarding the counterpart to s 419(1), s 324(1) of the 2 McMahon’s (Transport) Pty Ltd v Ebbage [1999] 1 Qd R 185, 188 (Pincus JA, with whom Davies JA and Dowsett J agreed). -- 4 of 9 -- [2026] SASCA 80 Livesey P 3 former Companies (Queensland) Code, mere entry into possession, or the assumption of control, by a receiver is not sufficient to create a liability in the receiver:3 But the provision in question [the counterpart to s 419(1)] must have been intended to make the receiver liable in circumstances where in its absence there would have been no liability. To confine its operation to circumstances in which the receiver has agreed, expressly or otherwise, to accept personal liability is to deprive it of effect. … it does not appear to contemplate that mere entry into possession or assumption of control by the receiver will in itself be sufficient to create liability; the section does not say that if that happens all debts which fall due subsequently, even if pursuant to contracts made before appointment of the receiver, are the receiver’s responsibility; to fall within the section, a debt must be “incurred by him” – i.e. incurred by the receiver. It is for this reason that, as it seems to me, ordinarily a receiver would not, under [the counterpart to s 419(1)], have become liable for rental payable by the company the subject of the receivership, merely by entering into and continuing in possession of the company’s business, conducted on leased property. … Merely taking and keeping possession of the company’s property consisting in premises leased to the company does not create any liability; it is the lease agreement which creates the liability and, ordinarily, that liability would continue whether or not the company was continuously in possession during the period of the lease. But if an act done by the receiver, or one done on behalf of the receiver, creates a liability in the company which would not otherwise have existed, it appears to me that [the counterpart to s 419(1)] makes the receiver personally liable; that is so even if the liability has its origin in a contract made by the company before the receivership. 14 This ruling has since been followed.4 The appellants contend that the primary judge failed to determine whether Reschke’s liability under the grape processing agreement with DiGiorgio would have existed regardless of any conduct by the receivers (appeal ground 1). 15 Next, and related to the first ground, the appellants contend that the primary judge erred in fact and law by finding that the appellants incurred the relevant debt under the grape processing agreement by leaving the wine at DiGiorgio’s premises, or by failing to ask DiGiorgio to release it. 16 The appellants contend that there was no evidentiary basis for a finding that they had the power or ability to remove the wine and, on the contrary, they point to the fact that DiGiorgio was asserting that it had a lien or other security over the wine. Reference is made to emails dated 29 May and 12 August 2019, by which DiGiorgio asserted that it would not release the wine unless or until its outstanding storage charges were paid in full. 3 McMahon’s (Transport) Pty Ltd v Ebbage [1999] 1 Qd R 185, 192-193 (Pincus JA, with whom Davies JA and Dowsett J agreed). There the Court of Appeal took what might be described as a broad view of the operation of the provision, finding that it was not confined to cases where the receiver had assumed liability, cf Re British Investments and Development Co. Pty Ltd [1979] ACLC 32, 100 (Needham J). 4 Concerning s 419(1) of the Corporations Act 2001 (Cth), AGL Victoria Pty Ltd v Lockwood & Ors (2003) 10 VR 596, [22]-[23] (Byrne J). -- 5 of 9 -- [2026] SASCA 80 Livesey P 4 17 The appellants also contend that in circumstances where DiGiorgio was claiming that its lien or other security for outstanding storage exceeded $3.5 million for the period before they were appointed as receivers, there was no basis to conclude that DiGiorgio would have acceded to a request to release the wine without payment, or that the appellants were in a position to make payment (appeal ground 2). 18 Finally, the appellants contend that the primary judge erred in law by finding that the appellants were not entitled to an equitable lien over wine held by DiGiorgio from the date of their appointment as receivers and managers. They contend that the primary judge should have found that the conduct of the appellants was not sufficiently unreasonable, whether generally in the conduct of the receivership, or specifically in connection with their dealings with DiGiorgio, to disentitle them from relying upon their equitable lien (appeal ground 3). 19 Apart from seeking orders that the obligation to make payment of the judgment sums be set aside, the appellants seek a declaration that they are entitled to an equitable lien over the sum of $1.47 million which ranks in priority ahead of any security interest of DiGiorgio. They also seek an order that DiGiorgio make payment to the appellants of that sum, together with an amount in respect of the use of that sum by DiGiorgio between 29 August 2025 and the date of judgment on the appeal. The appellants also seek costs. 20 DiGiorgio opposes the appeal and relies on the decision of the primary judge. It may be that a notice of contention will be filed. Neither the second nor third respondents will take any active part. Principles concerning a stay pending appeal 21 A successful litigant is ordinarily entitled to the benefit of a judgment unless and until it is set aside or varied on appeal:5 It is well recognised that the “norm” is that there is no stay of a final judgment and, if there is to be a stay, proper cause must be shown by the party seeking the stay. The onus is on the party seeking the stay to justify the favourable exercise of the Court’s discretion.6 The discretion to order a stay is not fettered by the use of adjectives such as “special” or “exceptional”. The Court will ordinarily act in the interests of justice, endeavouring to fairly balance the interests of the parties having regard to the balance of convenience. In many cases, the applicant seeking a stay must demonstrate serious issues for determination on appeal, together with the real risk of irreparable prejudice or damage if a stay is not granted and the appeal succeeds.7 Whilst it is conventional to address a stay by asking whether the appeal raises serious issues, whether prejudice will be sustained if the stay is not granted, together with the 5 Teachers Registration Board v Kourlas [2024] SASCA 88, [7]-[9] (Livesey ACJ). 6 Hackney Tavern Nominees v McLeod (1983) 33 SASR 590, 594 (White J). 7 See generally Brackenridge v Bendigo and Adelaide Bank Ltd [2020] SASC 235, [14]-[15] (Livesey J), and the cases there cited. -- 6 of 9 -- [2026] SASCA 80 Livesey P 5 balance of convenience,8 these considerations are neither immutable nor to be considered in isolation. They are inter-dependent.9 An apparently strong appeal may justify a stay even where there is scant evidence of prejudice or the balance of convenience is evenly poised. By contrast, even if there are doubts about appeal prospects a stay may be appropriate where the balance of convenience strongly favours it. 22 In short, it is for the party seeking a stay to demonstrate a proper basis for the favourable exercise of the court’s discretion. The judgment is in no sense provisional.10 When determining whether it is in the interests of justice to grant a stay, the court will usually evaluate that by reference to factors such as whether and to what extent the appeal is reasonably arguable, as well as the balance of convenience.11 23 Even assuming a bona fide appeal with some prospect of success, the Court must consider whether the balance of convenience favours the grant of a stay, evaluating any prejudice likely to be suffered by any party depending upon whether a stay is or is not granted. These considerations are inter-related. Usually, the balancing of these considerations will be undertaken with the benefit of admissible evidence.12 The determination of this application 24 DiGiorgio relies on the decision of Bradley J in Re Quirky Mama Productions Pty Ltd, arguing that the liability was periodic, not fixed.13 It also takes issue with the notion that the appellants could obtain an order for payment, as their notice of appeal suggests. DiGiorgio says that claim seems to have been abandoned before the primary judge. 8 See Ryan v Urban Construct (SA) Pty Ltd (No 2) (2012) 114 SASR 410, [3], [16]-[18] (Nicholson J); Playford Vineyard Pty Ltd v Wishford Nominees (No 2) [2018] SASC 152, [18]-[25] (Stanley J); Food and Beverage Australia Ltd v PJ Nash Pty Ltd (No 2) [2020] SASC 82, [14]-[15] (S Doyle J). 9 Cf Chimaera Capital Ltd v Pharmaust Ltd (2007) 64 ACSR 332, [83]-[84] (French J), citing Bullock v The Federated Furnishing Trades Society of Australasia (No 1) (1985) 5 FCR 464, 472 (Woodward J, with whom Smithers and Sweeney JJ agreed), when addressing interlocutory injunctive relief. 10 Redbubble Ltd v Hells Angels Motorcycle Corporation (Australia) Pty Ltd [2022] FCA 1039, [35]-[36] (Derrington J), and the cases there cited. 11 See Uniform Civil Rules 2020 (SA), rr 212.5 and 215.4; Marschall v Elson (No 2) (2023) 22 ASTLR 490, [10] (Livesey P, Lovell and S Doyle JJA). See also Lesses v Maras (No 2) [2016] SASC 140, [6]-[8] (S Doyle J); Franklin v South Australian Housing Authority [2024] SASCA 3, [8] (Livesey P); Georganas v Georganas [2024] SASCA 1, [5]-[6] (S Doyle JA); Luca v Maros & Ors [2025] SASCA 76, [23]-[24] (Livesey ACJ). 12 Redbubble Ltd v Hells Angels Motorcycle Corporation (Australia) Pty Ltd [2022] FCA 1039, [35] (Derrington J). 13 Re Quirky Mama Productions Pty Ltd [2021] QSC 345, [78]-[80] (Bradley J), where a broader approach may have been countenanced under s 419(1) of the Corporations Act, for a “liability the administrator or receiver created by some act, omission or circumstance which causes the company to owe the debt … and that does not create personal liability of the administrator or receiver under the common law, e.g. where they are acting as agent for the company as their disclosed principal”. Nonetheless, the claim in that case failed. -- 7 of 9 -- [2026] SASCA 80 Livesey P 6 25 It may be that the parties, with the benefit of new counsel, are taking an approach which is different to that which was taken before the primary judge. Whether or to what extent that is permissible I need not determine today. 26 It is neither necessary nor appropriate to endeavour to rule on the contentions advanced by the appellants or DiGiorgio, even in a preliminary way. It is sufficient to observe that there appears to be a bona fide appeal with some prospect of success, depending upon the view the Court takes about the operation and effect of s 419(1) of the Corporations Act – particularly whether an omission, rather than a positive act, by the receivers was sufficient – and the potential conflict or competition between the liens relied upon by DiGiorgio, and the Universal Distributing lien relied on by the appellants,14 respectively. 27 As for the balance of convenience, I have no information about the trading and financial position of DiGiorgio. Ordinarily, I would have expected the appellants to have presented at least some evidence on the issue. 28 On the present state of the evidence, I cannot say whether and to what extent the appellants should have been expected to provide evidence on the trading and financial position of DiGiorgio. Indeed, it is difficult to say whether it was appropriate for DiGiorgio, on the current state of the evidence, to rely upon the absence of evidence or provide that which was within its power.15 29 In that setting, I must address what I have in a pragmatic way. I must balance the apparent prospects on appeal against the proposition that there is at least some risk to the appellants if payment is now made. I do not think the risk is far-fetched or fanciful. It is the kind of real risk that can arise with many corporate litigants, no matter how satisfactory their financial position appears to be. I am also conscious that DiGiorgio has not adduced any evidence of prejudice, especially if a suitable guarantee is offered. 30 Notwithstanding the absence of evidence about DiGiorgio, and with some hesitation, there is in a case such as this some attraction in securing the respective interests of the parties by means of an appropriate bank guarantee. In those circumstances, and despite the deficiencies in the evidence, I am satisfied that the interests of justice are best served here by maintaining the status quo pending appeal, provided adequate security is furnished by the appellants. 31 Nonetheless, the appellants must be clear about the terms of that security, together with their willingness to meet any additional post-judgment interest 14 Re Universal Distributing Co Ltd (in liq) (1933) 48 CLR 171 (Dixon J). To the extent that there may be another security relied on by the appellants, the subject of their second appeal, that is disputed by DiGiorgio who claim to hold it. This may be the subject of a strike-out or notice of contention. 15 Blatch v Archer (1774) 98 ER 969 (Lord Mansfield): “It is certainly a maxim that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted”. -- 8 of 9 -- [2026] SASCA 80 Livesey P 7 obligation (should they fail), and to prosecute this appeal with diligence. These are the kinds of matters that the appellants should have addressed from the outset. 32 In the circumstances, I am prepared to grant a stay subject to provision of an appropriate bank guarantee, which incorporates an allowance for post-judgment interest, upon the condition that the appellants undertake to diligently prosecute their appeal before the Court of Appeal. 33 As I have listed the appeal for hearing in March 2027, the guarantee should operate for three months after the hearing until June 2027. The parties should have liberty to apply. Conclusion 34 I will hear from the parties tomorrow regarding the appropriate orders to give effect to this ruling. 35 As for costs, DiGiorgio sought an order that the costs of this application be theirs in the appeal.16 In my view, it is appropriate to reserve the question of costs and allow the Court of Appeal to address all costs with the benefit of having determined the outcome of the appeal. 16 Meaning they would only recover costs if they succeed on appeal, Karas v LK Law Pty Ltd (Costs of Stay Application) [2026] FCA 859, [3]-[4] (Perram J). -- 9 of 9 --