Croucher v Cachia (No 2)

1. [1]

   On 18 May 2015 her Honour Judge Norton SC entered a verdict and judgment in favour of the respondent, the plaintiff in the Court below, in the sum of $236,031.04 plus costs.

2. [2]

   On 7 August 2015 the applicant filed a Notice of Appeal against that judgment. Thereafter, a Notice of Motion was filed in this Court by the applicant seeking a stay of Norton DCJ’s order. I heard that application on 26 October 2015, and indicated that I would grant the stay sought subject to conditions.

3. [3]

   The relevant conditions related to a property at Panania jointly owned by the applicant and his wife on the one hand and to a portfolio of shares owned by the applicant on the other. I sought from the applicant, as a condition of granting the stay, that he give an undertaking to the Court that until further order he would not sell or encumber the Panania property or the shares together with a similar undertaking by his wife confined to the property.

4. [4]

   Apart from ordering that the hearing of the appeal be expedited and that the parties have leave to approach the Registrar for the purpose of obtaining an early date in the new year, the only other order I made on 26 October 2015 was a direction to the applicant to bring in Short Minutes of Order containing the necessary undertakings.

5. [5]

   In fact the hearing has now been fixed for 2 March 2016 and a timetable has been set for the filing of the necessary appeal papers. However the parties have been unable to agree on the terms of the undertakings to be given by the applicant and his wife. Apart from some minor changes to the undertakings sought by the respondent which I am prepared to accept, a major issue between the parties is that the respondent wishes to add to each of the undertakings of the applicant and his wife the following provision:

6. [6]

   The respondent submits that such a provision is supported by the following paragraph from the judgment of the Court in Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685 at 694-695 where the following was said (omitting citations):

7. [7]

   I note that the orders referred to in the last sentence of the above quotation was the payment into a joint account of the solicitors for the parties of a sum equivalent to the interest payable under a disputed mortgage.

8. [8]

   It was further submitted that there was a precedent for undertakings given to the Court to continue for one month after the Court had delivered final judgment in the appeal. Such an order was made in Kalifair Pty Ltd v Digi‑Tech (Australia) Limited (2002) 55 NSWLR 737.

9. [9]

   The respondent accepts that there were no reasons given in Kalifair as to why the undertakings were required to survive the judgment of the Court of Appeal by one month. It was suggested that it should be inferred that the purpose of such an order was to avoid any potential for the judgment creditor to dispose of his or her assets an order being made dismissing that party’s appeal.

10. [10]

    I do not think this is so. The Court in that case refused to require the provision of security for the judgment debt observing (at [33]) that the judgment creditors was not entitled to have conditions imposed for the purpose of increasing the value of its judgment. That was to be protected by a Mareva undertaking which was to be continued until a reasonable time after the determination of the orders. The facts of Kalifair are quite complex and quite dissimilar from those in the current case.

11. [11]

    The applicant also relied upon Kalifair and, in particular, the following paragraph taken from the headnote with some amendments but which I accept as accurately stating the relevant principle:

12. [12]

    In the same case the Court also said (at [28]):

13. [13]

    Although I accept that in an appropriate case this Court, as a condition of the grant of a stay, may, in its discretion, require an applicant seeking a stay to provide security so as to ensure that the respondent is not deprived of the fruits of the judgment which he or she has obtained, nevertheless there can be no doubt that the purpose of conditioning a stay in the manner proposed in the present case is to ensure that the status quo is maintained in terms of the applicant’s assets available to satisfy any judgment retained by the respondent on the appeal and thus to place the respondent in the same position he would have been in had no stay been granted.

14. [14]

    Had the stay been refused then although the respondent would have been able to enforce his judgment, nevertheless it would be a matter for the applicant as to whether they made available their assets to satisfy the judgment or whether they otherwise disposed of them. It is noteworthy that the primary judge’s order was dated 18 May 2015 and this Court did not order a stay until 26 October 2015 and that in the meantime there was no suggestion that the applicant had made any attempt to dissipate the assets in respect of which he and his wife are now prepared to give an undertaking that they be preserved.

15. [15]

    In the circumstances, I see no reason why the respondent should be placed in a more advantageous position than he would have been in had the stay application been refused. Accordingly it follows that the undertakings are only required to be given up to and including the date upon which the Court of Appeal determines the applicant’s appeal subject only to any further order of the Court. In that way the status quo will be maintained and the respondent appropriately protected.

16. [16]

    This is not a case where the respondent is entitled to a form of security: yet the extension of the undertakings that he seeks would have that effect. I am not prepared to accede to that outcome for it is unnecessary for the purpose of protecting the respondent’s position in ensuring that he is in the same position on the determination of the appeal as he would have been in had no stay been granted.

17. [17]

    The orders which I will now formally make take into account the amendments proposed by the respondent other than the proposed paragraph (d). I have settled the terms of the written undertakings to be given by each of the applicant and his wife and made them schedules to my orders. As each of the applicant and his wife will be giving written undertakings to the Court, it is unnecessary that those undertakings be given through the applicant’s counsel. It will of course be necessary for the undertakings as I have settled them to be resigned, witnessed and filed with the Court.

18. [18]

    Accordingly, the formal orders I make are as follows:

    1. (1)

       The judgment of her Honour Judge Norton SC of 18 May 2015 be stayed pending the hearing and determination of the appeal on condition that within seven days there is filed with the Court:

    2. (2)

       Costs of the Notice of Motion are to be costs in the appeal.

    3. (3)

       Appellant to file and serve written submissions together with the Black Book and Blue Book by 25 November 2015.

    4. (4)

       Respondent to file and serve his written submissions by 28 December 2015.

    5. (5)

       Liberty to both parties to apply to the Registrar on 2 days’ written notice to vary the directions referred to in paragraph (3) and (4) above.

    6. (6)

       Note that the appeal has been fixed for hearing on 2 March 2016.

SECOND SCHEDULE - UNDERTAKINGS

1. [19]

   I, Peggy Jeannette Croucher undertakes to the Court that:

2. [20]

   I will not, by myself, by servants or agents, sell, charge, mortgage or otherwise deal with or dispose of my interest (whether held beneficially or otherwise) in the property at 4 Sydney Street, Panania in the State of New South Wales, being the whole of the land or part thereof comprised in Folio Identifier 16/15605 (“Panania Property”) pending the final determination of the appeal commenced by my husband, Ronald James Croucher in the Supreme Court of New South Wales, Court of Appeal by Notice of Appeal filed 7 August 2015 against the judgment of her Honour Judge Norton SC dated 18 May 2015 or until further order.