Federal Court of Australia

SCL AUS Limited v Kirkalocka Gold SPV Pty Ltd [2025] FCA 1678

ORDERS

THE COURT ORDERS THAT:

1.    Upon:

(a)    the appellant's undertaking as to damages that was filed on 16 December 2025; and

(b)    the appellant further undertaking to pursue these proceedings with all due expedition,

the order made by the Court in WAD 110 of 2024 on 28 November 2025, that is in the following terms:

'Pursuant to s 90-15 of the Insolvency Practice Schedule (Corporations) (being Sch 2 to the Corporations Act) the defendant must:

(a)    on or before Friday 12 December 2025, under s 122E(2)(b) of the Mining Act 1978 (WA), provide its consent to the withdrawal of Caveat No. 649465 registered over the Mining Lease; and

(b)    otherwise do all things and provide all cooperation to the plaintiffs as is reasonably necessary to effect the withdrawal of the caveat as soon as practicable after Friday 12 December 2025',

is stayed until 4.00 pm AWST on 20 May 2026.

2.    The sum of $100,000 that was paid into court on 19 December 2025 by the appellants in WAD 110 of 2024, shall stand as security for the appellant's undertaking as to damages referred to in order 1.

3.    The costs of the appellant's further amended interlocutory process dated 23 December 2025 are reserved.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

VANDONGEN J:

1    The appellant, SCL AUS Limited (SCL), was the unsuccessful party in proceedings that were commenced by the respondents in mid-2024. In those proceedings the primary judge made orders in terms that largely reflected the orders that the respondents had sought: Kirkalocka Gold SPV Pty Ltd (Subject to Deed of Company Arrangement) (Receivers and Managers Appointed) v SCL AUS Limited [2025] FCA 1490. Having recently commenced an appeal against the primary judge's orders, the appellant has now made an urgent interlocutory application for an order temporarily staying one of those orders.

2    I am of the view that the appellant's application should be allowed and that orders should be made substantially in the form sought by the appellant. Before explaining why I have reached that conclusion, it is necessary to briefly summarise the background to the appellant's application.

Relevant background

3    The first respondent, Kirkalocka Gold SPV Pty Ltd (Kirkalocka), is a company that was incorporated in 2018 with a view to undertaking gold exploration and mining. One of its assets is a gold mine that is situated within a mining lease, M59/234, which is located about 70 km south of Mount Magnet, in the Mid-West region of Western Australia. The mine is called the 'Kirkalocka Gold Project'.

4    SCL, together with another company called Tor Asia Credit Opportunity Master Fund LP, entered into a royalty deed with Kirkalocka on 21 December 2018. Under the terms of the royalty deed, Kirkalocka was required to pay a royalty to SCL at a rate of $35 per ounce of doré (semi-refined gold) that was produced from any gold bearing material mined from the Kirkalocka Gold Project. The royalty deed also made provision for the lodgement, under the Mining Act 1978 (WA), of a caveat against the mining lease in favour of SCL, forbidding the registration of a dealing or surrender affecting the mining lease, or Kirkalocka's interest in the mining lease. SCL eventually lodged a caveat under the Mining Act against the mining lease in late 2022, after the Kirkalocka Gold Project has been placed into care and maintenance.

5    The second respondents are the former receivers and managers of Kirkalocka who were appointed in November 2023. Administrators were also appointed under Pt 5.3A of the Corporations Act 2001 (Cth) at the same time as the second respondents.

6    On 22 December 2023 the creditors of Kirkalocka entered into a deed of company arrangement (DOCA) to which Kirkalocka was then subject.

7    A dispute then emerged about whether the DOCA extinguished and barred certain rights and claims by SCL under the royalty deed, including SCL's rights to receive payment of future royalties and to see that caveats over relevant mining tenements are lodged and maintained. The parties were also in dispute about whether SCL should withdraw the caveat it had lodged over the mining lease.

8    Kirkalocka, while receivers and managers were still appointed, and while it was still subject to the DOCA, then commenced proceedings in this Court against SCL. Ultimately, the primary judge made various declarations in those proceedings, including declarations about the nature of SCL's rights under the royalty deed, and about the extent to which the DOCA was binding on SCL in respect of monetary claims it had against Kirkalocka under the royalty deed. Importantly, in the context of SCL's current interlocutory application, the primary judge also made an order that required SCL to provide its consent to the withdrawal of a caveat that was registered over the mining lease and to otherwise do all things that were reasonably necessary to effect the withdrawal of that caveat. In the balance of these reasons, I will refer to that order as the 'withdrawal of caveat order'.

9    After the primary judge had made final orders, SCL applied to his Honour for interlocutory orders to temporarily stay the withdrawal of caveat order. The primary judge allowed SCL's application and made further orders that required SCL to (a) file and serve an undertaking as to damages; (b) file and serve a notice of appeal; and (c) pay into Court by way of interim security for its undertaking, the sum of $100,000. Upon satisfaction of those conditions, the primary judge's order relating to the withdrawal of the caveat was to be stayed until 4.00 pm on 24 December 2025, or until further order of the Court.

10    The primary judge also made orders that effectively required the parties to ensure that SCL's application for a stay would be dealt with in any appeal proceedings that were commenced, and thus in the exercise of the Court's appellate jurisdiction.

11    There is no dispute that SCL has complied with the conditions referred to at [9] of these reasons, or that the interlocutory process that is now before me, as duty judge, has been brought in the appeal proceedings that were commenced by SCL on 12 December 2025. By that interlocutory process, SCL seeks an order that upon giving the usual undertaking as to damages, which is to be secured by the $100,000 that has already been paid into Court, the withdrawal of caveat order be stayed until 4.00 pm on 20 May 2026, or until further order of the Court.

12    Having sufficiently summarised the background to SCL's interlocutory process, it is then convenient to make brief reference to the principles that I am required to apply in determining whether the orders sought by SCL should be made.

Relevant principles

13    The principles that must be applied in the context of an application for a stay pending an appeal are not in dispute.

14    Rule 36.08(1)(a) of the Federal Court Rules 2011 (Cth) (Rules) provides that an appeal does not operate as a stay of execution or a stay of any proceedings under the judgment subject to the appeal. However, an appellant may apply to the Court for an order to stay the execution of the proceeding until the appeal is heard and determined. Section 25(2B)(ab) of the Federal Court of Australia Act 1976 (Cth) confers power on a single Judge to grant a stay under r 36.08 of the Rules pending determination of an appeal to the Court: O'Connor v Zentai [2011] FCA 1162 at [9] and Foster v Australian Competition and Consumer Commission [2014] FCA 240; (2014) 219 FCR 563 at [53].

15    The relevant principles to be applied were summarised by Thawley J in Darmali v Chu [2024] FCA 1521 at [29] to [30], where his Honour cited Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; (2002) 55 NSWLR 737 at [18]; Lehrmann v Network Ten Limited [2024] FCA 1226 at [30] and Sigma Pharmaceuticals (Australia) Pty Ltd v Wyeth (No 2) [2010] FCA 1212 at [15]. In the particular circumstances of this case, it is only necessary to note that in deciding whether to grant a stay, consideration must be given to at least the question of whether the appeal raises serious issues for determination of the appellate court, in the sense of raising arguable grounds, and the question of where the balance of convenience lies.

The evidence on which the parties rely

16    SCL relies on an affidavit affirmed by Steve Lyons, the General Counsel of a global asset management and banking group, SC Lowy. Mr Lyons says that he is authorised to make an affidavit on behalf of SCL. In his affidavit, Mr Lyons refers to the history of this matter and annexes a copy of the primary judge's reasons and orders, as well as correspondence that has been exchanged between the parties about the stay. His affidavit also contains what are, in effect, submissions in support of SCL's application for a stay.

17    SCL also tendered a copy of a letter sent by the respondents' solicitors to the solicitors acting on behalf of SCL on 11 December 2025. Amongst other things, the letter demonstrates that the respondents' solicitors indicated that the respondents may be prepared to consent to a stay on the basis that security be provided by SCL by paying $1.5 million into Court.

18    The respondents rely on an affidavit of Michael Tilley, who is a current director of Kirkalocka. In his affidavit, Mr Tilley says that Kirkalocka has now exited external administration and that the second respondents have retired as receivers and managers. In those circumstances, Mr Tilley has been engaged by a group of companies that he refers to as 'the Gylden Group', to look at ways of restarting Kirkalocka's business.

19    In his affidavit, Mr Tilley says that he has outlined to the Gylden Group a strategy to restart Kirkalocka's operations, which he says will require significant expenditure, including expenditure to refurbish the processing plant that is situated on the mining lease. Mr Tilley says that before incurring that expenditure, the Gylden Group will have to secure funding and will therefore need to present an investment case to potential funders. As I understand it, part of that investment case will include entering into contracts to treat third parties' ore at the processing plant (Toll Treatment Contracts) as well as the transfer of the mining lease to a special purpose vehicle that is not burdened with Kirkalocka's history of external administration. Mr Tilley says that this transfer is to occur before funding can be obtained.

20    Quite properly, Mr Tilley has also referred to two other matters that are of some significance. Firstly, he notes that there are proceedings that are currently before the Wardens Court in Western Australia. In those proceedings, a company called Vermillion Metals Pty Ltd is seeking forfeiture of the mining lease. Mr Tilley says that ever since those proceedings were commenced, he has been involved in 'several rounds' of without prejudice discussions on behalf of Kirkalocka in attempts to settle those proceedings. I was informed at the hearing of the application for a stay that the warden dealing with those proceedings has reserved his decision and has informed the parties that his decision will be handed down in the new year.

21    Mr Tilley has also drawn the Court's attention to other proceedings in the Supreme Court of Western Australia. I was informed by counsel for the respondents at the hearing of the application for a stay that, in those proceedings, St Barbara Limited seeks orders to enable it to maintain a caveat that it has also registered over the mining lease (the St Barbara caveat). According to Mr Tilley, those proceedings are listed for a final hearing on 19 and 20 May 2026.

22    In his affidavit, Mr Tilley says that Kirkalocka is likely to suffer prejudice if a stay is ordered and SCL's caveat remains registered on the mining lease. According to Mr Tilley, that prejudice takes two forms. Firstly, he says that the maintenance of SCL's caveat may adversely affect Kirkalocka's ability to enter into Toll Treatment Contracts, thereby affecting its ability to raise funding. Secondly, he says that the maintenance of the SCL caveat will be at least one factor inhibiting Kirkalocka's ability to transfer the mining lease to a special purpose vehicle. However, in making those assertions, Mr Tilley effectively acknowledges that it is not only maintenance of the SCL caveat that will result in prejudice being suffered by Kirkalocka. This is because Mr Tilley has appropriately explained how that prejudice may crystalise by reference to the effect of both the SCL caveat and the St Barbara caveat.

Does SCL have an arguable case?

23    This issue may be dealt with in short order.

24    The notice of appeal upon which SCL relies contains two grounds of appeal. By the first ground, SCL contends that the primary judge erred in finding that Kirkalocka's obligation under the royalty deed to pay a royalty to SCL was compromised by the resolution of Kirkalocka's creditors to enter into the DOCA. By the second ground SCL argues that the primary judge erred in finding that an obligation imposed by the royalty deed not to seek to remove the caveat, and the conditions on transfer of the mining lease, also did not survive the DOCA.

25    Although the respondents made it very clear in both their written and oral submissions that they are of the view that the grounds of appeal will ultimately be dismissed by the Full Court, the respondents nevertheless appropriately accept that SCL has raised arguable grounds. On that basis, the question of whether the stay sought by SCL should be made falls to be determined by reference to where the balance of convenience lies.

Does the balance of convenience favour the grant of the stay sought?

26    On behalf of SCL it is submitted that the balance of convenience favours the grant of a stay of the primary judge's order that requires the withdrawal of its caveat. SCL argues that in the absence of a stay, its appeal against the primary judge's orders will be rendered nugatory. It is submitted that if the caveat is removed then it would be impossible to restore SCL to the same position it was in if the primary judge's orders are ultimately set aside on appeal. SCL contends that if the caveat is removed, and if Kirkalocka is then otherwise permitted to deal with the mining lease, including by effecting its transfer, then those dealings could not be reversed following a successful appeal. It is also argued that there is no evidence that Kirkalocka, a company that has recently been in administration and in receivership, would be able to meet any claim for damages that SCL may suffer.

27    It was submitted that what SCL seeks to do is to maintain the status quo pending the hearing and determination of its appeal. However, at the hearing of the application for a stay, counsel for SCL recognised that the St Barbara caveat would prevent Kirkalocka from dealing with the mining lease in any event. In relation to that issue, counsel submitted that the St Barbara caveat cannot prevent SCL's appeal from being rendered nugatory because there is always the prospect that it may be withdrawn in circumstance over which SCL would have no control. For example, it may be withdrawn as part of a settlement of the Supreme Court proceedings.

28    It was further submitted that the stay sought by SCL could not prejudice the respondents. Counsel submitted that this is because Kirkalocka will in any event be unable to resume operations on the mining lease at least until the status of the St Barbara caveat is determined in the Supreme Court, which will not occur before 20 May 2026. It was said that in an effort to strike an appropriate balance between the respective interests of the parties, it was proposed that a stay be granted to have effect until 20 May 2026, or further order, and that there be liberty to apply to discharge or vary the terms of the stay should the circumstances relating to the St Barbara caveat change in the interim.

29    On the other hand, the respondents submitted in writing that there could be no prejudice to SCL even if the caveat were to be withdrawn before the hearing and determination of its appeal. The respondents say that, properly understood, it is the transfer of the mining lease, and not the withdrawal of the caveat, that is the subject of SCL's concerns regarding prejudice. In that context, the respondents also rely on the St Barbara caveat and say that the mining lease cannot be transferred even if SCL's caveat were to be withdrawn.

30    It was also submitted that if a stay were to be granted in favour of SCL then both Kirkalocka and the second respondents would suffer prejudice. In relation to Kirkalocka, it was submitted that the maintenance of the SCL caveat, together with the St Barbara Caveat, is inhibiting the ability of Kirkalocka and the Gylden Group to obtain finance or investment in the Kirkalocka Gold Project to support its growth by preventing the registration of a mortgage over the mining lease. It was also submitted that it was affecting the ability to use the mining lease as any form of consideration for any acquisition of rights to mine ore or in any settlement agreement in respect of current forfeiture proceedings because it cannot be transferred. A submission in the following terms was made in the respondents' written submissions:

From Kirkalocka's perspective, if the St Barbara caveat was removed, whether by Court order or agreement, then it would suffer prejudice as a result of the maintenance of the [SCL caveat], by reason of [inhibiting Kirkalocka and the Gylden Group from revitalising Kirkalocka's business and creating streams of revenue]. The affidavit of Mike Tilley explains the quantum of costs that would be applicable if that were to occur. (emphasis added)

31    It may be seen, therefore, that the prejudice to Kirkalocka on which the respondents rely is prejudice that will only materialise if the St Barbara caveat is withdrawn.

32    In relation to the second respondents, it was submitted that the second respondents have retired as the receivers of Kirkalocka and that, as a consequence, they no longer have recourse to its assets. It is said that the second respondents will suffer loss by reason of the stay,

in that the former receivers will again need to incur professional fees and costs in defending the appeal, which will form part of the secured debt and be payable by Kirkalocka.

33    On behalf of the second respondents, it is estimated that these fees and costs will be at least $250,000. As I understood it, based on counsel's oral submissions at the hearing of the appeal, this is the cost that will be incurred by the second respondents because they are now required to 'reinsert themselves into the proceedings', and that such costs could not properly be the subject of a security for costs application. Effectively, it was contended that SCL should be required to pay an amount of money into Court to ensure that the second respondents are 'not out of pocket'.

34    It was said that such losses have been found to be the type of loss for which an undertaking should respond, and for which an applicant for a stay with no assets in the jurisdiction ought to provide security. In that respect, the second respondents rely on what was held in Lithium WA Investments Pty Ltd v Kirman and Brauer as joint and several administrators of Alita Resources Ltd (Receivers and Managers Appointed) (Administrators Appointed) (No 2) [2021] WASC 63 at [76] and in Kipoi Holdings Mauritius Limited v Kirman and Bauer as joint and several Administrators of Tiger Resources Limited (Subject to Deed of Company Arrangement) [2021] WASCA 194 at [56].

35    The respondents ultimately submitted that as the appellant is a corporation that is registered in the Cayman Islands, and there is no evidence that it has any assets within this jurisdiction or any assets from which an order for damages could be met, it should provide security for the performance of its undertaking. In that regard it was submitted that the prejudice that will be suffered by the respondents should they be successful in defending the appeal can be 'entirely offset' if SCL was required to pay an amount of $400,000 into Court as security for its undertaking. Based on the oral submissions that were made by the respondents' counsel at the hearing of the application for a stay, the sum of $400,000 is the total of an amount of $150,000, which is said to relate to Kirkalocka's costs of the appeal, and the amount of $250,000, which is the second respondents' estimated remuneration and costs of the appeal.

36    In the end, during the hearing of the application for a stay it emerged that the real issue to be determined was not whether a stay should be granted but the terms on which it should be granted. Specifically, the narrow question to be resolved was whether a stay should be granted on condition that the sum of $100,000 that SCL has already paid into Court on 19 December 2025 stand as security for SCL's proffered undertaking as to damages, or whether the amount to be paid in should be in the sum of $400,000, as the respondents submit.

37    There was no dispute that, if a stay were to be granted, it would be appropriate for it to be granted on condition that SCL pay an amount of money into Court as security for its proffered undertaking as to damages. That there is no dispute that the Court has the power to impose such a condition, and that it would be appropriate for it to do so in this case, is unsurprising as SCL is a Cayman Islands registered corporation and there is no evidence that it has any assets within the jurisdiction: see First Netcom Pty Ltd v Telstra Corporation Ltd [2000] FCA 1269; (2000) 101 FCR 77 at [23], [24].

38    However, I am of the view that the parties demonstrated a degree of confusion about the scope of the usual undertaking as to damages, and therefore the security that may properly be required to secure the enforcement of such an undertaking, when articulating their respective arguments.

39    This confusion becomes apparent when regard is had to the relevant principles that must be applied when assessing an award of damages under an undertaking as to damages. Those principles were helpfully summarised by O'Bryan J in Mohamed trading as Billan Family Day Care v Secretary, Department of Education, Skills and Employment (No 3) [2021] FCA 1537 at [28], citing Commonwealth of Australia v Sanofi (formerly Sanofi-Aventis) (No 5) [2020] FCA 543 at [177]-[186], [190]-[195], as follows:

(a)    The equitable origins of an undertaking as to damages mean that the Court should favour an approach to assessing damages that is equitable, just and reasonable in the circumstances, and should not be constrained by any rigid rule. That said, in most cases it will be appropriate to award damages that flow directly from the relevant interlocutory order, and that could have been foreseen when the interlocutory application was granted: Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249 (Air Express) at 266-267 per Aickin J, cited with approval by French CJ, Gummow, Hayne, Heydon and Kiefel JJ in European Bank Limited v Robb Evans of Robb Evans & Associates (2010) 240 CLR 432 (European Bank) at 439 [18].

(b)    The party seeking to enforce the undertaking bears the onus of proving that the relevant loss was caused by the making of the interlocutory order, or, put differently, that it would not have suffered the loss 'but for' the making of that interlocutory order: Air Express per Gibbs J at 313, Stephen J at 319-320 and Mason J at 324-325.

(c)    It is necessary to distinguish (where such a distinction exists) between damages flowing from the interlocutory order and those flowing from the litigation itself. Only the former is compensable: per Aickin J at first instance in Air Express (at 268); a principle with which Barwick CJ (at 309-310), Gibbs J (at 311-312) Stephen J (at 315), and Mason J (at 324) expressed agreement on appeal. The onus of proof remains the same - the party seeking to enforce the undertaking must prove that the damage sustained was caused by the making of the order, not the litigation generally: Air Express at 313 per Gibbs J.

(emphasis added)

40    As I have already identified, the amount the respondents say SCL should pay into Court as security for its proffered undertaking as to damages is based on the costs the respondents say they are likely to incur in defending the appeal, whether they be legal costs, or remuneration to which the second respondents claim they will be entitled. However, irrespective of whether those estimates are accurate and appropriate, or whether there is any such entitlement, those costs will not be incurred because of the making of a stay in the terms sought by SCL. In other words, the sum of $400,000 which the respondents say should be paid into Court has no connection to the damages that may flow directly from an order staying the withdrawal of caveat order. A condition that is imposed on the grant of a stay that requires a party to pay a sum of money into Court is a condition that provides security for an undertaking as to damages, not security for the payment of costs. If the respondents wish to make an application for security for the costs of the appeal, then it is open to them to do so under r 19.01 of the Rules.

41    In my view, the respondents cannot derive any assistance from Lithium WA Investments. In that case, applications were made to vary interlocutory orders that had been made on an urgent basis. In that context the court also considered whether it was appropriate to consider whether any additional undertaking, apart from an undertaking as to damages, should be provided. The court ultimately concluded that, on the facts of that case, it was appropriate that an additional and specific undertaking be given by the plaintiffs in relation to specific costs of the defendants, to 'preserve the status quo that existed prior to the granting of the injunction': Lithium WA Investments at [76]. The circumstances of that case are far removed from the present. In this case, the respondents seek payment into Court of an amount as security for SCL's undertaking as to damages that represents the costs they say they are likely to incur, and the remuneration to which they say they will be entitled, in defending the appeal.

42    In Kipoi the Court of Appeal of the Supreme Court of Western Australia was dealing with an application that was made by an appellant for a stay of the primary decision, pending determination of the appeal. At [56], in the passage on which the respondents rely, the court noted that the parties had agreed that the security to be provided by the appellant should cover an amount 'in respect of additional remuneration and costs of the Deed Administrators'. The respondents in this case say that this is an example of a case in which a court has required an applicant for a stay to give an undertaking in relation to specific costs, in addition to the usual undertaking as to damages.

43    However, the passage in Kipoi on which the respondents rely must be read in the context of the passage that appears immediately before it in the reasons of the Court of Appeal (at [55], citing Air Express Ltd v Ansett Transport Industries (Operations) Pty Ltd (1981) 146 CLR 249, 311-312):

The parties were agreed on the principles to be applied in determining the quantum of security for Kipoi's undertaking. The amount of security for the undertaking should be the amount which, at this stage, appears to be a reasonable estimate of the loss that would be sustained by persons or entities by reason of the grant of the stay. The damages payable under the undertaking must be confined to the loss which is the natural consequence of the stay under the circumstances of which the party obtaining the stay had notice.

(emphasis added, footnotes omitted)

44    It is plain, therefore, that the specific costs with which the Court of Appeal was concerned were those that the parties had agreed were a reasonable estimate of the loss that would be sustained by the respondents in that case by reason of, and which were the natural consequences of, the grant of a stay.

45    To be fair to the respondents, the submissions that were made on behalf of SCL suggested that the sum of $100,000 that it was offering as security for its proffered undertaking as to damages represented SCL's estimate of the legal costs that would be payable to the respondents in the event the appeal was dismissed, rather being an amount that reflected the damages that might flow directly from the stay. Nevertheless, I am unable to accept the respondents' submission that the balance of convenience requires that an amount of $400,000 should be paid into Court as security for SCL's proffered undertaking as to damages as a condition of making the stay that is sought by SCL.

46    In all of the circumstances, I am of the view that the balance of convenience favours the making of an order staying the withdrawal of caveat order. An order that such a stay remain in effect until 4.00 pm AWST on 20 May 2026, when the proceedings in the Supreme Court of Western Australia concerning the St Barbara caveat are currently expected to conclude, strikes an appropriate balance between the interests of SCL in mitigating the risk that its appeal will be rendered nugatory, and the respondents' interests. As I have already said, the reality is that Kirkalocka will be unable to deal with the mining lease until the status of the St Barbara caveat has been determined. On the other hand, there is a risk that steps may be taken before the conclusion of the Supreme Court proceedings over which SCL has no control, and which may render its appeal rights nugatory were it to be required to withdraw its caveat at this stage.

47    As SCL is a foreign entity, the balance of convenience is in favour of it being required to pay a sum of money into Court as security for its proffered undertaking as to damages. In circumstances in which there is no evidence on which I can reach a proper view about the measure of damages that might flow to either of the respondents by reason of the grant of the stay, but where SCL has offered to provide security in the sum of $100,000, and has already paid that amount into Court, I will make the grant of the stay sought by SCL conditional upon the provision of that security. However, I am mindful that there is evidence that suggests that if the circumstances relating to the St Barbara caveat were to change before the appeal is heard and determined, there may be good reasons why the respondents may wish to apply to either dissolve the stay or, possibly, to seek a variation of the conditions upon which the stay has been granted, including the amount of security provided for SCL's undertaking as to damages.

48    I note that in First Netcom Pty Ltd at [26], the Full Court concluded that it was not open to retrospectively impose, or superimpose, further conditions on the grant of an interlocutory injunction. Further, in Overdean Developments Pty Ltd v Garslev Holdings Pty Ltd (No 2) [2020] NSWSC 745 at [68], Williams J cited with approval the following extract taken from an article by M Legg and N Soo, 'Security for an Undertaking as to Damages - a Principled Approach' (2016) 10 (No 1) Journal of Equity 74-87 at 80:

It may be unfair to an applicant for an injunction to have the court specify an amount of security as 'the price' for the injunction but then allow for the amount of security to be increased. The applicant may determine not to persist with the injunction so as to avoid the higher 'price' but they are placed in the unenviable position of having to make such a choice after they have embarked on litigation with its associated costs. If the interlocutory injunction is discharged then this may determine the underlying dispute so that further litigation is unable to deliver a meaningful remedy. The costs of the litigation, to the parties and the court, are then wasted. Further, as a matter of policy, repeated applications to vary security are to be avoided as a matter of case management and reducing cost and delay.

49    However, at the hearing of SCL's application for a stay, counsel for SCL told the Court that he accepted that the application had been brought on quickly, appropriately recognising that counsel for the respondents had limited time to respond. In that regard, counsel for SCL quite properly said that:

it would otherwise be entirely appropriate that if [the respondents] want to come back and have another go and prove what their loss might be or what their costs might be, then they can do that, and we won’t say that they should have done that today.

50    In those circumstances, I will make an order that the respondents have liberty to apply. Whether it will be open to vary the security provided by SCL for its undertaking as to damages, or whether it will be necessary to dissolve the stay and to make new orders that are subject to fresh conditions, if the respondents ever take advantage of that liberty and are able to persuade the Court that the security that has been provided by SCL is inadequate, are matters that can be determined at that time.

51    Finally, and as counsel for the respondents submitted, it is appropriate that SCL should take all reasonable steps to expedite the hearing of its appeal. Accordingly, and as counsel for SCL accepted, it is appropriate to stipulate a further condition on the making of the stay, namely, that SCL should undertake to pursue these proceedings with all due expedition.

Conclusion

52    For these reasons I will make orders largely in terms of the orders that were sought by SCL in its further amended interlocutory process dated 23 December 2025.

Associate:

Dated:    24 December 2025