Osborne v Boral Resources (NSW) Pty Ltd [2011] NSWCA 379 (31 October 2011)

Last Updated: 14 December 2011

Court of Appeal New South Wales

Case Title:	Osborne v Boral Resources (NSW) Pty Ltd
Medium Neutral Citation:	[2011] NSWCA 379
Hearing Date(s):	31 October 2011
Decision Date:	31 October 2011
Jurisdiction:
Before:	Campbell JA
Decision:	(1) Order that the judgment in the District Court in this matter be stayed pending the determination of the appeal, or further order. (2) Order that the costs of today's application be costs in the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	APPEAL - practice and procedure - Court of Appeal - stay of execution - serious questions for determination - risk that refusal of stay would cause prejudice or damage that would not be redressed by successful appeal APPEAL - practice and procedure - Court of Appeal - application for stay of execution - whether to permit adjournment to enable cross-examination
Legislation Cited:
Cases Cited:	Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; (2002) 55 NSWLR 737
Texts Cited:
Category:	Interlocutory applications
Parties:	Mark Gregory Osborne (Appellant) Boral Resources (NSW) Pty Ltd (Respondent)
Representation
- Counsel:	Counsel A Chee (Appellant) C Lock (Respondent)
- Solicitors:	Solicitors Proctor & Associates (Appellant) Oliveri Lawyers (Respondent)
File number(s):	2009/335437
Decision Under Appeal
- Court / Tribunal:	District Court
- Before:	Rolfe DCJ
- Date of Decision:	11 May 2011
- Citation:
- Court File Number(s)	2009/335437
Publication Restriction:

JUDGMENT - EX TEMPORE

1. CAMPBELL JA: The appellant in this matter has applied for a stay concerning a judgment that was given in the District Court on 11 May 2011. The judgment was given against the appellant, and related to a guarantee that had been given concerning the supply of concrete to a particular company. The judgment in question was for over $200,000, so there is no question concerning the competency of the appeal.

2. The appeal has not proceeded at all expeditiously. A notice of intention to appeal was filed on 1 June 2011 and served the next day. The notice of appeal was filed on 1 August 2011. The notice of motion seeking a stay was filed on 29 September 2011. On 10 October 2011, directions were given by the court that the appellant file and serve any further evidence concerning his notice of motion for a stay by 11 October, and that the respondent file and serve evidence on the motion by 14 October. The matter was stood over to 17 October. By 17 October, no further evidence had been filed by the appellant. There is an affidavit from the appellant's solicitor, Mr Jim Kekatos, of 29 September 2011, but it is a comparatively formal affidavit that details steps that have been taken in the matter so far.

3. On 17 October 2011, a direction was given to the appellant for submissions to be filed by 26 October. The red and black books were duly filed by 20 October. Submissions have still not been filed, though I have been handed in Court today a copy of some appellant's submissions that bear the date 31 October 2011.

4. The appellant served on the respondent on Friday of last week (today being a Monday) an affidavit that he had sworn on 28 October 2011, that is the previous day. It said that he had no assets apart from personal property such as furniture, clothes and a motor vehicle valued at approximately $10,000, and that he was unemployed. He annexed a creditor's petition that the respondent had served on him, which had been listed for hearing tomorrow, 1 November 2011.

5. Today, Mr Chee, who appears for the appellant, seeks an adjournment of the matter. He does so as Mr Lock, for the respondent wishes to cross-examine the appellant concerning his assets, and the appellant is not in court today.

6. I am told that the usual practice of the Federal Magistrates Court is not to hear a creditor's petition if there is an outstanding stay application in the Court of Appeal. Thus, if the adjournment were granted, it would itself operate as a de facto stay, at least so far as the creditor's petition is concerned, until the date of the adjournment. Immediately after the affidavit was served on the respondent's solicitors, a little after 3pm last Friday, notice for the appellant to attend for cross-examination was given. I am informed that he has been unable to attend, and that he lives at Bullaburra in the Blue Mountains.

7. He has not given an adequate explanation for his non-attendance. Any party who serves a late affidavit, and then ignores a notice to attend for cross-examination on it, is taking a big risk.

8. Notwithstanding that, in all the circumstances, I will decline the application for an adjournment. Cross-examination on affidavits is by no means a matter of right in interlocutory proceedings. The affidavit that the appellant has sworn is in terms that are precise, when he says he has no other assets aside from personal property such as furniture, clothes and a motor vehicle.

9. I recognise that in the court below the trial judge made extremely strong findings detrimental to the appellant's credit. They went so far as to say that he was "an untruthful person" and that certain evidence had been "made up." However, that is not a sufficient basis in this Court for refusing to accept the evidence in his affidavit of 28 October 2011 at a prima facie level. In my view it is preferable, as a matter of the speedy administration of justice, for a decision whether to grant the stay to be made now. Acceding to the adjournment application would only delay the resolution of the stay application. It is speculative on the material now before me whether the cross-examination, if allowed, would be fruitful. There is no evidence before me to suggest that there are now even prima facie grounds for questioning the affidavit of the appellant. It is not suggested that there is any specific source material for cross-examination that the respondent expects to be able to obtain in the adjournment.

10. In those circumstances I decline the application for adjournment, and decline an application for cross-examination on the affidavit. The matter will therefore be decided on the basis of the material now before the Court.

[further argument]

11. CAMPBELL JA : In this matter, by the thinnest of margins, I have come to the view that it is appropriate to grant a stay.

12. The applicant for a stay must show that the appeal raises serious questions for the determination of an appellate court and that there is a risk that he will suffer prejudice or damage if the stay is not granted that will not be redressed by a successful appeal: Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; (2002) 55 NSWLR 737. One of the ways in which such prejudice or damage might be shown is if refusal of a stay would render the appeal nugatory.

13. So far as whether there are serious questions for determination of the appellate court, the matters at issue concern an inference that the judge made that various orders for concrete, that was ultimately delivered by the respondent to an address at Lee Holm Road, St Marys, were ones placed in circumstances under which the guarantee that the appellant had given responded. That involved questions of who had placed the orders in question, whether the person who had placed the orders did so with the authority of the company whose debts were guaranteed, and related matters. As I have mentioned, the judge made findings extremely detrimental to the credit of the appellant, but his finding on authority was influenced to a significant extent by inferences he drew from circumstances in which the concrete was ordered, that were not dependent on the appellant's credit.

14. I do not at present have the impression that the appellant's case is strong, but it does, I think, get over the hurdle of raising serious questions for determination of the appellate court.

15. When there is imminent bankruptcy, it is clear that there is a prospect the refusal of a stay would cause the appellant prejudice or damage that would not be redressed by a successful appeal.

16. It is usual, when considering a stay, to consider if there are any terms that should be imposed on the applicant for the stay, to minimise the harm that the respondent would suffer if the appeal were to fail. In the present case, it appears futile, at least on the evidence now before me, to require any partial payment, as a condition of the appeal, or indeed any security for costs. That is clearly a detrimental consequence of granting the stay, but the overall balance of justice is in favour of the stay, assuming that the appeal is brought on promptly.

17. I order that the judgment in the District Court in this matter be stayed pending the determination of the appeal, or further order. In providing that the stay might terminate upon further order, I have in mind that delay in bringing the matter on promptly for hearing might itself provide a ground for seeking to dissolve the stay, if that delay was significant. In putting it that way, I am not limiting the grounds upon which an application to dissolve the stay might be made.

[further submissions]

18. CAMPBELL JA : I order that the costs of today's application be costs in the appeal.

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