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Adeels Palace Pty Ltd v Moubarak

Adeels Palace Pty Ltd v Moubarak

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New South Wales

Court of Appeal

CITATION: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Najem (No.2) [2009] NSWCA 130

HEARING DATE(S): 25 May 2009

JUDGMENT DATE:
25 May 2009

JUDGMENT OF: Hodgson JA at 1

EX TEMPORE JUDGMENT DATE: 25 May 2009

DECISION: In each case:
· I note the undertaking to the Court by the applicant to prosecute the application and any appeal in the High Court expeditiously, and on that undertaking and subject to the condition that I will mention, I make order (1) in the Notice of Motion as filed in Court to-day.
· That order is subject to the condition that within fourteen days the applicant will provide security for the judgment debt and interest as agreed between the parties or as approved by the Registrar and if that condition is not satisfied the stay will come to an end.
· I give leave to the applicant to apply on 1st June 2009 to have this condition removed and I direct that any evidence in support of such application be served on or before midday on 28 May 2009.
· I order that the costs of the application to date be costs in the application for special leave to appeal.
· I stand the Notice of Motion over to the 1st June 2009 before the Registrar to enable the application to remove the condition to be made, if it is to be made.

CATCHWORDS: PROCEDURE – Application for stay of judgment – Whether there is an onus on the applicant to exclude appreciable risk that delay will cause the applicant to be less able to meet the judgment.

CATEGORY: Procedural and other rulings

CASES CITED: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Najem [2009] NSWCA 29
Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685
Carr v Swart [2007] NSWCA 135
Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681
John Fairfax & Sons Limited v Kelly (No. 2) (1987) 8 NSWLR 510
Walker v Lakatoi Universal Pty Ltd [2000] NSWCA 318

PARTIES: ADEELS PALACE PTY LTD (applicant in both matters)
Anthony MOUBARAK (opposing party in 40024/08)
Antoin Fayez Bou NAJEM (opposing party in 40025/08)

FILE NUMBER(S): CA 40024/08; 40025/08

COUNSEL: J SEXTON SC (applicant (in both matters))
D C MORGAN (opposing party (Moubarak))
J W CATSANOS (opposing party (Najem))

SOLICITORS: Lee & Lyons Lawyers (applicant (in both matters))
Leitch Hasson Dent, Solicitors (opposing party (Moubarak))
Sanford Legal (opposing party (Najem))

LOWER COURT JURISDICTION: Court of Appeal

LOWER COURT DATE OF DECISION: 26 February 2009

LOWER COURT MEDIUM NEUTRAL CITATION: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Najem [2009] NSWCA 29

CA 40024/08
CA 40025/08

HODGSON JA
25 MAY 2009

ADEELS PALACE PTY LIMITED v MOUBARAK;

ADEELS PALACE PTY LIMITED v NAJEM (No. 2)

Judgment

1 HODGSON JA: In proceedings in the District Court the applicant, Adeels Palace, was found liable to Mr Moubarak and Mr Bou Najem for…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NSWCA 130
Decision Date: 25 May 2009

CaseChat Overview and Summary

This matter concerned an application for a stay of judgment brought by Adeels Palace Pty Ltd. The dispute arose from a judgment against Adeels Palace Pty Ltd in favour of Moubarak. The application was heard by Hodgson JA in the Court of Appeal of New South Wales.

The primary legal issue before the Court was whether the applicant bore an onus to exclude an appreciable risk that any delay occasioned by a stay of the judgment would render the applicant less able to satisfy the judgment debt.

Hodgson JA considered the principles governing applications for a stay of judgment pending an appeal. His Honour noted that a stay is not granted as of right and requires the applicant to demonstrate sufficient grounds. While the applicant had given an undertaking to prosecute the application and any subsequent appeal expeditiously, the Court imposed a condition that security for the judgment debt and interest be provided within fourteen days. This condition was subject to review on 1 June 2009, with leave granted to the applicant to apply for its removal and directions for the service of supporting evidence. The costs of the application were made costs in the application for special leave to appeal, and the matter was adjourned to enable the application to remove the condition.

Orders

Orders of the court

In each case: * I note the undertaking to the Court by the applicant to prosecute the application and any appeal in the High Court expeditiously, and on that undertaking and subject to the condition that I will mention, I make order (1) in the Notice of Motion as filed in Court to-day. * That order is subject to the condition that within fourteen days the applicant will provide security for the judgment debt and interest as agreed between the parties or as approved by the Registrar and if that condition is not satisfied the stay will come to an end. * I give leave to the applicant to apply on 1st June 2009 to have this condition removed and I direct that any evidence in support of such application be served on or before midday on 28 May 2009. * I order that the costs of the application to date be costs in the application for special leave to appeal. * I stand the Notice of Motion over to the 1st June 2009 before the Registrar to enable the application to remove the condition to be made, if it is to be made.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Najem (No.2) [2009] NSWCA 130
HEARING DATE(S):	25 May 2009
JUDGMENT DATE:	25 May 2009
JUDGMENT OF:	Hodgson JA at 1
EX TEMPORE JUDGMENT DATE:	25 May 2009
DECISION:	In each case: · I note the undertaking to the Court by the applicant to prosecute the application and any appeal in the High Court expeditiously, and on that undertaking and subject to the condition that I will mention, I make order (1) in the Notice of Motion as filed in Court to-day. · That order is subject to the condition that within fourteen days the applicant will provide security for the judgment debt and interest as agreed between the parties or as approved by the Registrar and if that condition is not satisfied the stay will come to an end. · I give leave to the applicant to apply on 1st June 2009 to have this condition removed and I direct that any evidence in support of such application be served on or before midday on 28 May 2009. · I order that the costs of the application to date be costs in the application for special leave to appeal. · I stand the Notice of Motion over to the 1st June 2009 before the Registrar to enable the application to remove the condition to be made, if it is to be made.
CATCHWORDS:	PROCEDURE – Application for stay of judgment – Whether there is an onus on the applicant to exclude appreciable risk that delay will cause the applicant to be less able to meet the judgment.
CATEGORY:	Procedural and other rulings
CASES CITED:	Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Najem [2009] NSWCA 29 Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685 Carr v Swart [2007] NSWCA 135 Jennings Construction Limited v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681 John Fairfax & Sons Limited v Kelly (No. 2) (1987) 8 NSWLR 510 Walker v Lakatoi Universal Pty Ltd [2000] NSWCA 318
PARTIES:	ADEELS PALACE PTY LTD (applicant in both matters) Anthony MOUBARAK (opposing party in 40024/08) Antoin Fayez Bou NAJEM (opposing party in 40025/08)
FILE NUMBER(S):	CA 40024/08; 40025/08
COUNSEL:	J SEXTON SC (applicant (in both matters)) D C MORGAN (opposing party (Moubarak)) J W CATSANOS (opposing party (Najem))
SOLICITORS:	Lee & Lyons Lawyers (applicant (in both matters)) Leitch Hasson Dent, Solicitors (opposing party (Moubarak)) Sanford Legal (opposing party (Najem))
LOWER COURT JURISDICTION:	Court of Appeal
LOWER COURT DATE OF DECISION:	26 February 2009
LOWER COURT MEDIUM NEUTRAL CITATION:	Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Najem [2009] NSWCA 29