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  • Unreported Judgment

Jadewell Pty Ltd v Shelley

 

[2009] QCA 39

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Jadewell P/L v Shelley & Ors [2009] QCA 39

PARTIES:

JADEWELL PTY LTD
ACN 010 781 736
(first plaintiff/first respondent)
JOHN WELLESLEY COWLEY
(second plaintiff/second respondent)
PATSDAY PTY LTD
ACN 080 357 713
(third plaintiff/third respondent)
v
RICKI CHARLES SHELLEY
(first defendant/first applicant)
MISTWEFT PTY LTD
ACN 060 586 576
(second defendant/second applicant)
CHIPPIES MACKAY PTY LTD
ACN 100 601 974
(third defendant/third applicant)
RD SERVICES (GLENDEN) PTY LTD
ACN 050 403 113
(fourth defendant/not a party to the appeal)
RESIDENTIAL DEVELOPMENTS (NORTH QLD) PTY LTD
ACN 054 461 988
(fifth defendant/not a party to the appeal)
RESIDENTIAL DEVELOPMENTS (NORTH QLD) NO 2 PTY LTD
ACN 091 200 305
(sixth defendant/not a party to the appeal)
XL CABINETMAKING PTY LTD
ACN 078 653 013
(seventh defendant/not a party to the appeal)
MANDOX PTY LTD
ACN 080 526 521
(eighth defendant/fourth respondent)

FILE NO/S:

Appeal No 1844 of 2009

SC No 4708 of 2004

DIVISION:

Court of Appeal

PROCEEDING:

Application for Stay of Execution

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED EX TEMPORE ON:

27 February 2009

DELIVERED AT:

Brisbane

HEARING DATE:

27 February 2009

JUDGE:

Holmes JA

ORDERS:

  1. On the applicants’ giving the usual undertaking as to damages, stay of enforcement of orders particularised in 2(a) and (b) of judgment of 30 January 2009, subject to the applicants’ undertaking to sign any documentation necessary to enable Mr Cowley to access half of the proceeds of Mandox Pty Ltd bank accounts as held today.
  2. Costs of application are costs of the appeal.

CATCHWORDS:

Appeal and new trial – appeal - practice and procedure – Queensland – stay of proceedings – when granted – where applicants seek stay of enforcement of a Supreme Court order – where applicants propose to appeal against judgment below – where appeal appears to be arguable – where applicants contend not granting stay would render appeal nugatory, and granting stay would maintain status quo which existed up to trial – whether stay should be granted

COUNSEL:

P J Dunning SC, with C Jennings, for the applicants

D A Savage, with C A Wilkins, for the respondents

SOLICITORS:

Brian Bartley & Associates for the applicants

Tucker & Cowen for the respondents

HOLMES JA:  This is an application for a stay of the enforcement of a judgment dated 30 January 2009 in a Supreme Court proceeding.  On further inquiry it proved that not all the orders flowing from the judgment were the subject of the application, but what is sought to be stayed is an order that the fourth respondent, Mandox Pty Ltd, pay $221,000 to the second appellant, Mistweft Proprietary Limited, and simultaneously that Mistweft deliver an executed share transfer of its shares in Mandox to Farncastle Proprietary Limited, the other shareholder in Mandox Proprietary Limited, with associated documentation, to the solicitors for the second respondent, Mr Cowley.

A third order for payment of $67,500 by another of the corporate appellants who are respondents here is not the subject of the stay application, but an order for payment of interest on that amount is.  I say immediately that I do not think that the material supports a stay of that order.

The proceedings at first instance concerned an agreement for various property ventures to be carried out by the first appellant, Mr Shelley, and the first respondent, Mr Cowley, in part through Mandox Proprietary Limited.  Other parties to the proceeding were companies associated with each of them involved directly or indirectly with the proposed arrangements.  The learned judge, largely on the basis of his acceptance of Mr Cowley's evidence, found that there was an agreement to unwind the business arrangements which involved Mandox repaying $221,000 earlier paid by Mistweft and Mistweft transferring its shares in Mandox to give Mr Cowley control of the company.  The appellants' case, on the other hand, was that the original agreement remained in force.

The appellants' counsel say they will appeal on the basis that the trial judge made wrong findings as to what the parties agreed by reason of mistakes as to his "comprehension, recollection and evaluation of evidence" and by a failure to apply the rule in Browne v Dunn in respect of Mr Shelley's cross-examination as to what was agreed.  They allude to some aspects of the evidence which it is said should have led his Honour to make different findings.  It isn't possible, even if it were appropriate, for me to reach any very clear view of the appellants' prospects of success but the appeal would appear at least to be arguable.

As to the balance of convenience, the appellants have furnished affidavit evidence to the effect that Mandox remains, it would seem, the registered proprietor of two lots in a residential subdivision and holds at least $880,000 in a bank account. 

This concern is raised about disposition:  that it emerged from cross-examination of Mr Cowley at the trial that an amount of some $221,000 paid by Mistweft and another company to Mandox was moved to another joint company, Gladingvale.  Out of the funds held by Gladingvale, $171,000 was paid out as interest to a Cowley company in respect of a debt which Mr Cowley could not, in cross-examination, identify and which does not seem to have appeared in the company's books.

There is no material put on for the respondent concerning that matter or any others.

The appellants say that if the companies' assets were to be disposed of pending the resolution of the appeal, the appeal would be rendered nugatory and that to grant the stay is merely to maintain the status quo which existed for some time up to the time of trial.

The respondents argue that the worth of the undertaking offered by the appellants is dubious.  There is some material from one of the appellants, Chippies Mackay Proprietary Limited, which shows that it operates a relatively prosperous restaurant and bar business and has some assets of some worth.

It seems to me, in all the circumstances, that the proper course here, applying the balance of convenience, is to grant a stay, but one which allows to Mr Cowley the prospect of drawing on half the funds presently held by Mandox since, as the parties agree, no better result would be achieved even were the applicants successful on the appeal.

I propose, then, to order a stay of the judgment so far as the order of specific performance, as it is particularised in orders 2(a) and (b), is concerned, subject to the applicants’ undertaking to sign any documentation necessary to allow Mr Cowley to draw on the funds held in bank accounts by Mandox, to the extent of half those funds.

...

HOLMES JA:  I should say that the stay is given subject to the usual undertaking as to damages.

...

HOLMES JA:  To make it perfectly clear, that will be half of the proceeds of the accounts as held as agreed between the parties as at today.

...

HOLMES JA:  The costs of the application are costs in the appeal.

Close

Editorial Notes

  • Published Case Name:

    Jadewell Pty Ltd & Ors v Shelley & Ors

  • Shortened Case Name:

    Jadewell Pty Ltd v Shelley

  • MNC:

    [2009] QCA 39

  • Court:

    QCA

  • Judge(s):

    Holmes JA

  • Date:

    27 Feb 2009

Litigation History

No Litigation History

Appeal Status

No Status