Batiste v Lenin

[2002] NSWCA 358

CITATION:	BATISTE & ORS v LENIN [2002] NSWCA 358
FILE NUMBER(S):	CA 40335/02
HEARING DATE(S):	28 October 2002
JUDGMENT DATE:	28 October 2002
PARTIES :	Donna Batiste - First Claimant Hazaran Pty Ltd - Second Claimant Chrystalis Holdings Pty Ltd - Third Claimant Michael Petrovic Lenin - Opponent
JUDGMENT OF:	Sheller JA

LOWER COURT JURISDICTION :	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) :	3548/01
LOWER COURT JUDICIAL OFFICER :	Bergin J

COUNSEL:	L J Aitken/J M Baxter - Claimants M Walton SC - Opponent
SOLICITORS:	Horowitz Bilinski - Claimants Phillips Fox - Opponent
LEGISLATION CITED:	Conveyancing Act 1919
CASES CITED:	Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681
DECISION:	Application dismissed with costs.

CA 40335/02
ED 3548/01

SHELLER JA

Monday, 28 October 2002

BATISTE & ORS v LENIN

JUDGMENT

(Application for stay)

1 SHELLER JA: This is an application by notice of motion made to the Court by the claimants, Donna Batiste, Hazaran Pty Limited (Hazaran) and Chrystalis Holdings Pty Limited (Chrystalis), that the judgment of this Court in an appeal in which the claimants were appellants and the opponent, Michael Petrovic Lenin, was the respondent, be stayed pending the hearing and determination of the claimants’ application for special leave to appeal to the High Court. In the alternative, an order is sought for a stay of the execution of the writ of possession granted to the opponent in the matter.

2 The application for special leave to appeal was filed on 25 October 2002. The grounds of the appeal are:-

“(a) The Court of Appeal erred in holding that the trial judge was entitled in assessing the Applicants’ application as lessee for relief against forfeiture of its lease to take into account breaches of non-rent covenants notwithstanding that no notice of such breaches pursuant to section 129 of the Conveyancing Act 1919 had been served by the landlord;

(b) The Court of Appeal erred in failing to hold that the lessee was entitled to recoup from the rent the amount of over $2,000,000 which the lessee expended in refurbishing the hotel.”

3 The decision of this Court from which special leave to appeal is sought was given on 27 September 2002 in the Court which consisted of Giles, Santow JJA and myself and was unanimous in its opinion that the appeal should be dismissed. Their Honours, Giles and Santow JJA, agreed with the reasons for judgment that I published.

4 This application is supported by the affidavit of the claimant, Donna Batiste, who is the sole director and shareholder of the claimant, Hazaran. The affidavit, which I have read, sets out a number of matters which go to the question of whether or not the non-grant of the stay sought would make the application for special leave futile and/or, alternatively, would in the circumstances of that application impose particular hardship on the claimants so that on that basis a stay should be granted.

5 It appears from the material that…