Tin-Tagel Majikk Pty Ltd v Hockey (No 3)

1. [1]

   MITCHELMORE JA: On 29 April 2026, the Court of Appeal handed down its decision in Tin-Tagel Majikk Pty Ltd v Hockey [2026] NSWCA 72. Relevantly for present purposes, the Court dismissed the appeal and ordered the appellants to pay the respondents’ costs of the appeal. As a result of the orders of the Court of Appeal, the appellants were liable to pay judgment in the amount of $952,930.69 (incl. pre-judgment interest), plus the interest accrued since 10 June 2025, as well as the respondents’ costs of the trial and the appeal.

2. [2]

   On 30 April 2026, the appellants filed a notice of motion seeking to stay the enforcement of the judgment and costs orders made by the Court of Appeal as well as those made at first instance, pending a decision as to whether to apply for special leave to appeal to the High Court of Australia or otherwise seek review of the Court of Appeal’s decision.

3. [3]

   As was the case in the Court of Appeal, Mr Folley appeared at the hearing, representing himself, his wife, Kathryn Folley, and the two companies of which each is respectively the sole director and shareholder, namely, Tin-Tagel Majikk Pty Ltd (Tin-Tagel) and Majikk Pty Ltd (Majikk). I will refer to the appellants collectively as “the Folleys”.

4. [4]

   The relevant orders that the Folleys sought in the notice of motion were in the following terms:

5. [5]

   In the “Grounds” section of the notice of motion, the Folleys noted that they were self-represented and required “a short period” to consider the Court of Appeal’s judgment, and whether it disclosed any errors upon which a further appeal or review application may be founded, and that any enforcement steps taken in the interim period may cause irremediable prejudice. In an affidavit sworn 3 May 2026 in support of the notice of motion, Mr Folley expressed particular concern that the judgment debt may be enforced against a property in Turramurra (the Property), which is owned by Majikk and over which Majikk has granted a second mortgage to the respondents.

6. [6]

   In written submissions prepared by Mr Folley and filed on 17 May 2026, the stay sought was described as short, protective and directed to preserving the position pending filing a special leave application, any necessary application for further stay relief, any slip-rule or corrective action concerning the entered orders, and any further order.

7. [7]

   As is apparent from the reference to “any application for special leave to appeal…filed within time” in proposed order 10(a), at the date of the notice of motion the Folleys had not filed an application for special leave. That they had not done so was consistent with the notice of motion being filed the day after the Court of Appeal’s judgment. However, at the hearing of the notice of motion, on 18 May 2026, Mr Folley confirmed that no application for special leave had been filed. The time for filing such an application, if filed “within time”, expires on 27 May 2026, being 28 days after the judgment below was pronounced: see r 41.02.1 of the High Court Rules 2004 (Cth). Mr Folley stated at the hearing that a special leave application would be filed before the deadline.

8. [8]

   The respondents, to whom I will refer collectively as “the Hockeys”, opposed the relief sought in the notice of motion. Mr Katekar SC appeared with Ms Hall of counsel for the Hockeys.

9. [9]

   In an affidavit affirmed 15 May 2026 by Sharnie Leith, the Hockeys’ solicitor on the record, Ms Leith stated that none of the processes for enforcing the orders of Walton J could be completed in the period before 27 May 2026. Those processes would involve, first, issuing letters of demand to each of the appellants, and then, if payment was not forthcoming, taking such steps as appropriate for each appellant, two of which are corporations and two of which are natural persons. In so far as Majikk is the registered owner of the Property over which the first and second respondents have a secured interest, Ms Leith observed that Macquarie Bank, as the priority mortgagor, would need to be consulted as part of any process to take possession of and sell the Property.

10. [10]

    In light of Ms Leith’s evidence, which was filed in accordance with the practice direction on 15 May 2026, Mr Folley accepted at the hearing of the notice of motion that the concern at the time of filing the notice of motion — that the judgment would be enforced before the Folleys could make any applications — was negated. Nonetheless, the Folleys maintained the application for a stay until 27 May 2026 and, in the event that a special leave application was filed, for a short further period or until further order, to permit them to seek any necessary outcome from the High Court or further directions from a court.

11. [11]

    For the reasons set out below, the Folleys’ notice of motion should be dismissed.

Evidence on the notice of motion

1. [12]

   I have referred above to an affidavit sworn by Mr Folley on 3 May 2026. The Folleys relied on two further affidavits of Mr Folley, sworn 15 May 2026 and 17 May 2026. The Folleys also filed two sets of written submissions, the first dated 15 May 2026 and the second dated 17 May 2026.

2. [13]

   The Hockeys relied on the affidavit of Ms Leith of 15 May 2026 to which I have already referred, along with an affidavit of Ms Leith affirmed 6 March 2026, which was prepared in the context of an earlier interlocutory application. Written submissions were also filed on behalf of the Hockeys, dated 15 May 2026.

Background to the notice of motion

1. [14]

   By way of broad outline (the primary judgment is more than 700 paragraphs and the Court of Appeal’s judgment is just under 200 paragraphs), the focus of the proceedings was a Share Sale Agreement (Agreement) dated 17 May 2018 between the Folleys and the Hockeys. Pursuant to the Agreement, the Folleys were to purchase the Hockeys’ shares in Danc Pty Ltd (“Danc”) for $2.3 million. Danc operated a real estate business known as Ray White Bateau Bay. The Agreement contemplated that the Hockeys would provide vendor finance in the amount of $690,000, to be repaid in two years and secured by way of a registered second mortgage over the Property. The Folleys also obtained finance from Macquarie Bank in the amount of $1.61 million, secured by a registered first ranking security over the Property.

2. [15]

   Before the sale of the Hockeys’ shares to the Folleys, Macquarie Bank held a charge over Danc’s assets which secured Danc’s and the Hockeys’ then-indebtedness to the Bank pursuant to a loan. Clause 3.2(g) of the Agreement provided that completion was “subject to and conditional upon”, inter alia, the delivery of an executed release of, or undertaking to remove or transfer, any registration on the Personal Property Securities Register (PPSR). The Hockeys paid out the Macquarie Bank loan on the completion date of the Agreement, but they failed to deliver an executed release of the loan, and the charge granted by Danc to Macquarie Bank remained on the PPSR.

3. [16]

   The Folleys failed to repay the vendor finance by the agreed date, being 1 June 2020. On 2 April 2024, Danc defaulted under the loan with Macquarie Bank. The Bank appointed receivers to Danc pursuant to the charge registered on the PPSR.

4. [17]

   On 28 May 2020, the Folleys commenced proceedings in the Supreme Court alleging that the Hockeys were liable for failing to remove the charge from the PPSR before completion of the Agreement. The Hockeys filed a cross-claim seeking repayment of the vendor finance they had advanced to the Folleys, as well as the balance of the retention amount.

5. [18]

   On 10 June 2025, Walton J dismissed the Folleys’ claim and allowed the Hockeys’ cross-claim, ordering the Hockeys to file and serve Short Minutes of Order reflecting the judgment. On 3 July 2025, his Honour made orders which relevantly included:

6. [19]

   On 11 September 2025, his Honour published his judgment as to costs and interest and directed the Hockeys to file and serve Short Minutes of Order reflecting that judgment. On 18 September 2025, his Honour made the further orders which relevantly included:

7. [20]

   On 9 September 2025, the Folleys commenced an appeal. By notice of motion dated 3 March 2026, the Folleys sought leave to rely on fresh and further evidence, and to rely on an amended notice of appeal. The Court of Appeal (Price AJA, Kirk and Adamson JJA agreeing) granted leave to the Folleys to rely on the amended notice of appeal: at [59]. The Court refused leave to rely on further evidence (save for a series of emails which were relevant to an alleged denial of procedural fairness (Ex KRF-5)), and also refused leave to rely on fresh evidence: at [55], [57].

8. [21]

   Price AJA summarised the first nine grounds of appeal as follows at [20]:

9. [22]

   The additional grounds of appeal for which the Folleys were granted leave to amend concerned: whether the primary judge erred in making orders against Majikk in circumstances where his Honour found it was not a party to the Share Sale Agreement (ground 10); whether the Hockeys breached cl 6.6(b)(i) of the Agreement, in light of further evidence sought by the applicants to be adduced (which evidence was not ultimately admitted) (ground 11); whether the primary judge denied the Folleys procedural fairness in making adverse credit findings against them as witnesses (ground 12); the primary judge’s construction of the charge (ground 13); and the primary judge’s construction of cl 13.4 of Sch 4 of the Agreement.

10. [23]

    In dismissing the appeal, Price AJA dealt with the grounds as follows:

    1. (1)

       His Honour concluded that there was no error in the primary judge’s construction of cl 3.3 of the Agreement. It followed that, by proceeding to completion, the Folleys could not insist on compliance with the conditions precedent in cl 3.2 even though, as the primary judge accepted, a condition precedent had not been satisfied (ground 1): at [92].

    2. (2)

       In relation to grounds 2 to 4, which challenged the primary judge’s finding that the Folleys had either imputed or actual knowledge about the charge and the PPSR, Price AJA concluded that the issue of knowledge had little relevance on the primary judge’s construction of cl 3.3 of the Agreement and it was thus not strictly necessary to address these grounds: at [94]. Nonetheless, his Honour considered the grounds and concluded that the primary judge was correct to conclude that the knowledge of the Folleys’ solicitors was correctly imputed to the Folleys, irrespective of whether the solicitors communicated that knowledge to them or whether they exercised diligence: at [95]-[97]. Further, there was evidence, which the primary judge was entitled to rely upon, that the Folleys were in fact aware of the existence of the charge and PPSR registration (grounds 2-4): at [98].

    3. (3)

       Ground 5, which was addressed to the issue of waiver, was also unnecessary to address in light of his Honour’s conclusion on ground 1: at [94]. Further, and in any event, Price AJA noted that he had considered the issue of waiver in the context of ground 1: at [99].

    4. (4)

       The issue in ground 6, by which the Folleys contended that they were induced to proceed to completion by representations that the Hockeys made, to the effect that the charge would be discharged on settlement, was not advanced at trial. His Honour concluded that the Folleys did not overcome the heavy burden of establishing that the point, if raised below, could not have been met by any evidence that would have been raised responsively: at [101]-[102].

    5. (5)

       Ground 7 took issue with the primary judge’s finding that the Folleys had abandoned their pleaded claim that the Hockeys had breached cl 4.3(b) of the Agreement. Price AJA considered it significant that this claim was not one of the 19 issues contained in the Agreed Statement of Issues (ASOI) at trial: at [108]. His Honour also noted that there was one reference to cl 4.3(b) in the written closing submissions prepared by the Folleys’ counsel below, in the context of an argument concerning the construction of cl 3.3: at [109]. Price AJA concluded that the primary judge was correct to regard the pleaded claim as having been abandoned: at [109]-[111].

    6. (6)

       In relation to ground 8, given his Honour’s conclusions on grounds 1 to 5, Price AJA concluded that the Folleys’ contention, that the primary judge erred in finding that they had sufficient knowledge of the Hockeys’ breach to constitute an election to affirm the Agreement, was not made out: at [113]-[114].

    7. (7)

       On ground 9, his Honour concluded that neither the primary judge’s factual findings nor his Honour’s consideration of the legal issues relating to recission were in error: at [131], [137]. The Folleys argued on the appeal that practical justice required that they not be compelled to pay the vendor finance pursuant to cl 6.6(e) of the Agreement, on the basis that the Hockeys’ misleading and deceptive conduct and failure to provide a clear title precipitated the loss of the real estate business and its subsequent receivership. Price AJA observed that this argument did not appear to have been advanced below, and dismissed it on the basis that the Folleys did not establish a causal connection between Mrs Hockey’s contravening conduct (in representing that she intended to retire), or the Hockeys’ breach of cl 3.2(g) of the Agreement, and the Folleys’ loss of their business as a result of the receivership of Danc’s assets: at [138]-[140].

    8. (8)

       Ground 10 involved a contention that the primary judge erred in making or affirming orders against Majikk when it was not a party to the Agreement and its role was limited to providing security for the vendor finance: at [142]. In dismissing the ground, Price AJA concluded that although the Folleys’ defence to the cross-claim raised, at least implicitly, that Majikk was not a party to the Agreement, the argument was not pursued at trial, in which event it would have been included in the ASOI, addressed in submissions and, potentially, been the subject of an application to amend the cross-claim so as to add a claim under the mortgage that Majikk had granted: at [155]. His Honour considered that in the circumstances, the Hockeys were correct that it was not open to the Folleys to make this argument on the appeal: at [158]. In reaching this conclusion, his Honour noted that as no further reasons were given for the orders the primary judge made on 3 July 2025, which had been the subject of the respondents’ Short Minutes of Order, it was open to infer that those orders were made by consent. This meant that the Folleys had passed up another potential opportunity to have argued that Majikk should not be subject to the orders sought on the cross-claim: at [157].

    9. (9)

       The Folleys’ case on ground 11 depended on the admission of Exhibit KRF-1, which was rejected: at [161]. In any event, the emails in that exhibit would not have produced a different outcome because the emails were not relevant to the issue, being whether the Hockeys breached cl 6.6(b)(i) of the Agreement by the non-adjustment of the purchase price on completion for tax liabilities: at [161]-[162].

    10. (10)

        Ground 12 alleged that the primary judge made adverse credibility findings without affording either Mr or Ms Folley an opportunity to respond to the specific inference drawn, that they had compared notes in preparing their evidence. Price AJA concluded that the Folleys were cross-examined on the subject of whether they had conversations or agreed what to say in their affidavits, and that extensive submissions were made as to credit findings the primary judge might make in relation to Mr and Mrs Folley and Mrs Hockey: at [167]. There was no denial of procedural fairness. The emails in Exhibit KRF-5, which the Court of Appeal admitted, did not assist the Folleys and instead undermined their complaint, as the emails showed that the solicitors had provided the respective affidavits of Mr and Mrs Folley to the other before they were finalised: at [168].

    11. (11)

        By grounds 13 and 14, the Folleys sought to raise questions of breach of provisions of the Agreement that were not run below, namely, breach of cl 2.1(d) (ground 13) and breach of the warranty in cl 13.4 of Sch 4 (ground 12). Price AJA accepted the Hockeys’ submission that both grounds constituted a significant departure from the Folleys’ case at trial: at [178]-[180], [191]-[192].

The application for a stay

1. [24]

   In 123 259 932 Pty Ltd v Cessnock City Council (No 2) [2023] NSWCA 89 (“Cessnock (No 2)”) Kirk JA summarised the principles relevant to an application of the present nature:

2. [25]

   His Honour summarised the principles at [10]:

3. [26]

   As the Hockeys submitted, there is an inherent difficulty in determining whether there is a substantial prospect that special leave will be granted where the Folleys have not yet filed an application for special leave that articulates the grounds of appeal they intend to raise.

4. [27]

   In relation to the foreshadowed special leave application, in the written submissions dated 15 May 2026 the Folleys identified 14 issues described as “serious issues supporting preservation” (which I refer to below as “Issue D[number]”). Two of those issues did not relate to a special leave application: Issue D12 related to a potential application under the slip rule, while Issue D13 foreshadowed potential applications about post-trial matters, including the sale of Danc’s rent roll. The final issue, D14, relied on the cumulative effect of the other issues.

5. [28]

   In the written submissions dated 17 May 2026, the Folleys sought to address the Hockeys’ submission in writing that they had not identified a sufficiently specific basis either for special leave or for other corrective relief. Under the heading “Proposed special leave questions”, the Folleys set out six question topics, by which they alleged errors on the part of the Court of Appeal and the primary judge (which I refer to below as “Question [number]”). As Mr Katekar pointed out during the hearing, there was not a complete overlap as between the two sets of submissions. A significant omission from the written submissions of 17 May 2026 was any allegation of error relating to the construction of cl 3.3 of the Agreement. As I noted above, that issue was the basis of ground 1 in the Court of Appeal, and its determination adversely to the Folleys meant that a number of the other grounds of appeal were unnecessary to determine.

6. [29]

   Mr Folley indicated at the hearing that the later submissions did not supersede the earlier submissions. Accordingly, I will proceed on the basis, favourable to the Folleys, that their foreshadowed special leave application will seek to advance each of the issues identified across the two documents. Consistently with the authorities, evaluating the prospects of special leave in this context involves a judicial impression: Bryant v Commonwealth Bank of Australia [1996] HCA 3; 70 ALJR 306 at [13]. For the reasons Kirk JA set out in Cessnock (No 2) at [21], it is undesirable to undertake a detailed analysis of the merits of the foreshadowed application.

7. [30]

   As to the prospects of the matters that the Folleys have foreshadowed across both sets of submissions, I would not assess the prospects of the Folleys obtaining special leave as substantial. I have summarised above the grounds of appeal that the Folleys advanced in the Court of Appeal, and the Court’s resolution of those grounds. The foreshadowed application for special leave seeks to reagitate ground 1 (Issue D2), grounds 2 and 3 (Issue D4), ground 4 (Issue D5; Question 4), ground 7 (Issue D1; Question 6), and ground 10 (Issue D11). The foreshadowed issues concerning the Court of Appeal’s resolution of those grounds of appeal do not raise a question of law or public importance, nor do they appear to require resolution in the interests of the administration of justice: see s 35A of the Judiciary Act 1903 (Cth). Grounds 2, 3 and 4 of the notice of appeal, for example, did not need to be finally determined in light of the Court’s conclusion on ground 1.

8. [31]

   The Folleys also take issue with the Court’s refusal to admit the further evidence and fresh evidence on which they sought to rely in the appeal (Issues D6, D7 and D8; Question 5). The Court considered the evidence and concluded that there was no reasonable possibility that it would have produced an outcome in the Folleys’ favour (see at [54], [95], [161]). In those circumstances, the prospect of the High Court granting special leave to consider the Court’s decision not to admit the evidence would seem to me to be insubstantial.

9. [32]

   I note that a further two issues raised in the submissions, namely, an alleged breach of cl 3.4(a) of the Agreement (Issue D3; Question 2) and an alleged breach of the warranty in cl 9.1 by reference to the material in Sch 5 of the Agreement (Issue D9; Question 3), were not raised in the Court of Appeal. In the hearing before me, Mr Folley accepted it was “possible” that cl 3.4(a) was not addressed on the appeal. As far as I can ascertain from the judgment, it was not. Mr Folley did not agree that cl 9.1 was a new point, and I agree that cl 9.1 was raised in the Court of Appeal, but the context was an alleged breach of warranty in cl 13.4 of Sch 4 of the Agreement (ground 14), which the Court did not ultimately entertain because that point had not been raised at first instance. Additionally, the Folleys sought to take issue with submissions that the Hockeys advanced for the first time at the hearing in the Court of Appeal (Issue D10; Question 1). Mr Katekar submitted that the Court raised a concern about these submissions at the hearing, because of the lack of notice to the Folleys, and the submissions were not referred to in the judgment. The prospect of the High Court granting special leave to consider any of these matters would also appear to be insubstantial.

10. [33]

    The Folleys’ submissions regarding the balance of convenience were necessarily contingent because, as I noted above, the Hockeys have not yet taken any enforcement action. As the Hockeys submitted, there is no evidence on this application as to precisely what the Folleys’ assets are and the value of those assets, including the Property, which is owned by Majikk. That said, the Folleys were concerned in particular with the possible enforcement of the judgment against the Property, which might suggest an incapacity to pay the judgment debt and costs by other means.

11. [34]

    Whether the Hockeys are able to sell the Property by way of enforcement is subject to the position of Macquarie Bank as the first-ranking mortgagee, which is presently unknown, the Hockeys not having taken any steps towards enforcement at this stage. Accordingly, while it may be accepted that enforcement action affecting the Property would be relevant to the balance of convenience, at this stage it is difficult to evaluate the likelihood of that prospect.

12. [35]

    The Hockeys submitted that the balance of convenience weighed in their favour, in circumstances where the judgment relates to a liability which arose in June 2020. According to the Hockeys’ written submissions, Mr and Mrs Hockey, who are aged 67 and 70 years respectively, intended to retire following the Agreement and had to return to work in order to fund the legal proceedings. Mr Katekar submitted that the delay associated with a stay would not be remedied by the accrual of interest, which will not be recoverable if the Folleys are unable to pay the judgment debt in full. There is a necessarily contingent aspect of the latter submission in circumstances where the value of the Property and the debt position in relation to Macquarie Bank are unknown.

13. [36]

    One further matter that I raised with Mr Folley at the hearing was the delay in filing an application for special leave. As at 18 May 2026, some 19 days after the Court of Appeal’s judgment, the application had not been filed. That fact casts doubt on the Folleys written assurances that they would prosecute any further application expeditiously. Accordingly, as matters presently stand, I consider that the balance of convenience favours the Hockeys, although not by a significant margin.

14. [37]

    It is appropriate separately to consider the other applications that the Folleys have foreshadowed as warranting a stay, being referred to in Issues D12 and D13 of the submissions of 15 May 2026.

15. [38]

    Issue D12 complains that the Court of Appeal erroneously assumed that the orders made on 3 July 2025, which identify Majikk and Tin-Tagel as liable for the judgment amount, were made by consent to give effect to the primary judgment. Mr Folley’s affidavit dated 15 May 2026 annexes a copy of an email sent by the Hockeys’ solicitor to the primary judge’s associate noting that only orders 4 to 6 had been consented to by the Folleys. This is an issue which the Folleys identify as being amenable to a slip rule or corrective application. Assuming for present purposes that the Court proceeded on a misapprehension as to the consent position on orders, it is unlikely that Issue D12 is of any real significance. Paragraph 157 of Price AJA’s reasons refers to this issue as “a further matter to note”. His Honour otherwise held that the Folleys did not pursue that aspect of their defence, and, had they done so, the Hockeys would have had an opportunity to amend their cross-claim to include a claim against Majikk under the mortgage agreement. Those conclusions do not depend upon the reasoning in [157]. Moreover, the same considerations relating to the balance of convenience apply, namely, there is limited risk of enforcement in the near term; and the Folleys have failed, in the several weeks since the publication of the Court’s judgment, to bring any application for review.

16. [39]

    Issue D13 flags potential applications about conduct after the trial, concerning the sale of Danc’s rent roll. Of the little that has been said about this in the material before me, it would appear that such applications would involve claims outside the scope of the present proceedings. It would be inappropriate to grant a stay of enforcement in these proceedings on the basis of as-yet-unknown claims that may (or may not) be the subject of other proceedings.

17. [40]

    Having regard to the above matters, I am not satisfied that the Folleys have established that the present circumstances warrant even the short stay sought pending the making of an application for special leave by the deadline in the High Court Rules. Nor does the material before me provide a sufficient basis on which I would be prepared to grant a stay for any further period.

18. [41]

    The notice of motion should be dismissed. The Hockeys sought their costs of the notice of motion. The ordinary rule as to costs is that they follow the event and I have not discerned in the material any basis on which that rule should not be followed in the present case. Accordingly, I make the following order:

    1. (1)

       The notice of motion dated 29 April 2026 and filed on 30 April 2026 is dismissed with costs.