- Unreported Judgment
COURT OF APPEAL
Appeal No 3605 of 2002
VALLEYFIELD PTY LTDRespondent
TRUSTEE PARKER UNIT INVESTMENT TRUSTPlaintiff
PRIMAC LIMITED (ACN 010 023 284)Not party to appeal
NETAFIM AUSTRALIA PTY LTDAppellant
(ACN 056 229 755)Second Defendant
McPHERSON JA: I do not propose to give reasons at length or at any great length. My views on the matter are really demonstrated to some extent by what has been said in an interlocutory way in the course of submissions by counsel. Judgment was given against the appellant in March of this year for an amount of approximately $3.8 million. The claim arose out of the installation of an irrigation system on the property of the plaintiff company Valleyfield, that is the respondent to the appeal, where beans are grown in commercially large quantities.
The appellant has appealed against that decision on various grounds which are referred to in some detail in the written submissions before me. It is apparent that, because some of the grounds of appeal challenge findings based on the credibility of witnesses who are accepted by the trial Judge, the appellant has an uphill battle on appeal. It has in the written submissions confronted this problem to some extent, and claims that this case is different from what might be described as the ordinary run of appeals in which it is simply evident that the appellant is dissatisfied with the findings that were made, and nothing more.
In all the circumstances I think this is an appropriate case for a stay. The amount is large. It is over $3.7 million and it is fairly arguable that if it were paid over now it may not be readily recoverable, or at all, or in full, in the event of the appeal succeeding. It is regrettable that, because of the intervention of another party in the proceedings or the bringing of that party into the appeal, and because of the recent flow of cases into this Court, it may be that the appeal will probably not be heard until early next year. However, that is one of the misfortunes of litigation, and the most that can be said is that this Court is considerably ahead of most others in Australia in disposing of its workload.
Undertakings are sought in respect of the provision of sums which the appellant suggests are available and will be paid to secure the judgment; but only on terms that the appellant wishes to be sure that they can be recovered immediately if the appeal succeeds. In the result I am prepared to make an order substantially in the terms of the draft handed up to me.
I should have added that there was and is a cross application for security for costs, and it appears to me to have been resolved satisfactorily in the sense that the appellant is prepared to make available, by paying into Court or otherwise, the sum of $30,000 as security for the costs of the respondent to the appeal brought by the applicant.
Mr Doyle, I think that there should be an undertaking from your side not to dispose of the assets of your company other than in the ordinary course of business; and having regard to the fact that a named person has been identified as the only director in Australia, it would be appropriate if it came from him as well as, I suppose, the company itself. Can you write that into the order?
MR DOYLE: I shall. I obviously need to speak - his affidavit says that on behalf of the company he gives that undertaking so I don't apprehend there'll be any difficulty.
McPHERSON JA: Yes. One has to think about what would be done to attach it. If he gives it on behalf of the company I'm in some doubt whether he could be attached if there was a breach of it.
MR DOYLE: I understand. Your Honour wants one from him and I'll write that in but I'll need to speak to him obviously.
McPHERSON JA: Probably needs to be both.
MR DOYLE: Yes.
McPHERSON JA: My intention therefore is to order that there be a stay of execution on the terms of the draft order handed up to me; with the incorporation of the provision which Mr Doyle and I have recently discussed concerning an undertaking from his client the appellant and the director concerning the disposition of the assets - or the non-disposition of the assets of the appellant pending the determination of the appeal.
Incidentally, Mr Doyle, is there a possibility that you could succeed to some extent and not wholly in this case?
MR DOYLE: Yes. If all else fails there's a challenge to the quantum of the damages awarded.
McPHERSON JA: It occurred to me to say that perhaps the order should cater for that event. It's a bit of a problem in a way because if you get to a certain point one doesn't want you succeeding for $10 and saying, "Well, we won the appeal and therefore" but perhaps the order can be redrafted to take account of that.
MR DOYLE: We'll look at it, your Honour.
McPHERSON JA: I suppose the best way of dealing with it would be to ask you to return a copy of the redrafted order. It will come back for signing, I suppose, for approval by me or the associate but I think I should see it so that it's satisfactory to my mind as well as to yours and Mr Griffin's. He, of course, doesn't find it satisfactory at all but he may never be so some comments on the form of it which he may wish to make if it were satisfactory to him which it isn't.
So those are the orders that I will make. Perhaps a security for costs order could be put in a formal way too.
MR DOYLE: Thank you, we'll do that.
McPHERSON JA: Thank you, gentlemen.
- Published Case Name:
Netafim Australia P/L v Valleyfield P/L
- Shortened Case Name:
Netafim Australia Pty Ltd v Valleyfield Pty Ltd
 QCA 165
10 May 2002
No Litigation History