Australian Executor Trustees Ltd v Pachkovski

Case [2011] NSWCA 23

Court of Appeal

New South Wales
Case Title: Australian Executor Trustees Ltd v Pachkovski
Medium Neutral Citation: [2011] NSWCA 23
Hearing Date(s): 31 January 2011
Decision Date: 23 February 2011
Jurisdiction:
Before:

McColl JA
Decision:

As to the motion filed on 20 January 2011:
1. Lift the stay of the writ of possession granted by Young JA on 29 November 2010. 2. Set aside the subpoena filed on 6 January 2011. 3. Each party to bear its and their costs of the motion filed on 20 January 2011.
As to the motion filed on 24 November 2010:
4. Dismiss the motion filed on 24 November 2010. 5. Applicants to pay the costs of the motion.
[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:

APPEAL - application for summary dismissal - Uniform Civil Procedure Rules 2005 13.4 - leave to appeal - powers of a single judge of appeal - s 46 Supreme Court Act 2005 (NSW)

PROCEDURE - application to set aside subpoena

PROCEDURE - stay of writ of possession pending appeal - prejudice - no dispute as to liability for principal sum owing - stay not appropriate
Legislation Cited:

Civil Procedure Act 2005 (NSW)
Federal Court Act 1976 (Cth)
Supreme Court Act 1970 (NSW)
Uniform Civil Procedure Rules 2005
Cases Cited:

Australian Executor Trustees Ltd v Alexandre Pachkovski & Ors [2010] NSWSC 1089
Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 Cox v Journeaux [No 2] [1935] HCA 48; (1935) 52 CLR 713
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Macatangay v State of New South Wales (No 2) [2009] NSWCA 272
Spencer v Commonwealth [2010] HCA 28; (2010) 84 ALJR 612
State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306
Wright v Ryan [2005] NSWCA 368
Texts Cited:
Category: Principal judgment
Parties:

Australian Executor Trustees Ltd (Applicant)
Alexandre Pachkovski (First Respondent)
Violetta Primanzon (Second Respondent)
Grigoriy Primanzon (Third Respondent)
Representation
- Counsel:

Counsel:
A Casselden (Applicant)
Respondents in person
- Solicitors:

Solicitors:
Gadens Lawyers (Applicant)
File number(s): 2009/295053
Decision Under Appeal
- Court / Tribunal: Supreme Court
- Before: Hidden J
- Date of Decision: 24 September 2010
- Citation: Australian Executor Trustees Ltd v Alexandre Pachkovski [2010] NSWSC 1089
- Court File Number(s)
Publication Restriction:

Judgment

  1. McCOLL JA: By notice of motion filed on 20 January 2011 Australian Executor Trustees Ltd, the applicant, seeks orders:

"1. That the summons seeking leave to appeal filed on 24 November 2010 be dismissed.

2. That the notices of motion filed on 24 November…

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Australian Executor Trustees Ltd v Pachkovski [2011] NSWCA 23
Case
[2011] NSWCA 23
Decision Date

CaseChat Overview and Summary

In the New South Wales Court of Appeal, Australian Executor Trustees Ltd (the applicant) sought to lift a stay on a writ of possession and set aside a subpoena. The respondent, Pachkovski, had previously obtained the stay of the writ of possession and issued the subpoena. The applicant also sought dismissal of a motion filed by the respondent.

The primary legal issues before the Court of Appeal were whether to lift the stay on the writ of possession, whether to set aside the subpoena, and whether to dismiss the respondent's motion. The court also considered the appropriate costs orders for the various motions.

McColl JA determined that a stay of the writ of possession was not appropriate given there was no dispute as to the liability for the principal sum owing. The court reasoned that continuing the stay would cause prejudice to the applicant. Consequently, the stay was lifted. The subpoena was also set aside. The respondent's motion was dismissed.

The court ordered that the stay of the writ of possession granted by Young JA be lifted, and the subpoena filed on 6 January 2011 be set aside. Each party was to bear their own costs of the motion filed on 20 January 2011. The motion filed on 24 November 2010 was dismissed, with the applicants ordered to pay the costs of that motion.

Orders

Orders of the court

As to the motion filed on 20 January 2011:

1. Lift the stay of the writ of possession granted by Young JA on 29 November 2010. 2. Set aside the subpoena filed on 6 January 2011. 3. Each party to bear its and their costs of the motion filed on 20 January 2011.

As to the motion filed on 24 November 2010:

4. Dismiss the motion filed on 24 November 2010. 5. Applicants to pay the costs of the motion.

[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.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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