Arturus Capital Limited v Nair

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Arturus Capital Limited v Nair [2011] NSWCA 208

Hearing dates:

18 July 2011

Decision date:

18 July 2011

Before:

McColl JA

Decision:

(1) Subject to Order 2 below, stay the judgment and order of Harrison J of 10 June 2011 pending the outcome of the appeal.

(2) Within 10 business days of today's date the applicant to pay $500,000 to Dr Nair and lodge the balance of the judgment debt in an interest-bearing account in the name of the solicitors for the parties.

(3) Expedite the hearing of the appeal.

(4) Give the parties leave to approach the Registrar of the Court of Appeal this afternoon to obtain the earliest possible hearing date.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PROCEDURE - application for stay of orders pending appeal - appeal to be based on argument not raised at trial - whether applicant can show a proper basis for stay that would be fair to both parties

Legislation Cited:

Civil Procedure Act 2005 (NSW)
Corporations Act (2000) (Cth)

Cases Cited:

Nair v Arturus Capital Limited [2011] NSWSC 499
Nair v Arturus Capital Limited [2011] NSWSC 381
Nair v Arturus Capital Limited [2010] NSWSC 329; (2010) 78 ACSR 43

Category:

Procedural and other rulings

Parties:

Arturus Capital Limited - applicant
Dr Chenicheri Hariharan (Hari) Nair - respondent

Representation:

Dr JE Griffiths SC with IR Pike - applicant
PC Silver - respondent
Ellison Tillyard Callanan - applicant
HWL Ebsworth - respondent

File Number(s):

CA 2008/285665

Publication restriction:

No

 Decision under appeal 

Jurisdiction:

9111

Citation:

Nair v Arturus Capital Limited [2011] NSWSC 499

Date of Decision:

2011-05-31 00:00:00

Before:

Harrison J

File Number(s):

2008/285665

Judgment

1. McCOLL JA: This is an application by the applicants, Arturus Capital Limited, pursuant to an amended notice of motion filed on 18 July 2011 for a stay pending the outcome of the appeal from the judgment and orders made by Harrison J on 10 June 2011: see Nair v Arturus Capital Limited [2011] NSWSC 499.

1. The proceedings concern the question whether the respondent, Dr Nair, is entitled to be paid a termination benefit pursuant to a Workplace Agreement made on 23 June 2007 in consequence of him resigning from his position with the applicant in November 2007.

1. The question whether he is entitled to that payment turns, as I understand it, entirely on the provisions of s 200A, s 200B and s 200F of the Corporations Act (2000) (Cth) as in force in June 2007.

1. There have been three hearings at first instance.

1. In the first, Davies J determined separate questions as to…