Buckworth v Gladio Pty Ltd

[2016] NSWCA 104

Court of Appeal
Supreme Court

New South Wales

Case Name:	Buckworth v Gladio Pty Ltd
Medium Neutral Citation:	[2016] NSWCA 104
Hearing Date(s):	9 May 2016
Decision Date:	11 May 2016
Before:	Meagher JA
Decision:	1. Appellant/applicant’s notice of motion filed 6 May 2016 dismissed. 2. Applicant pay first respondent’s costs of the motion.
Catchwords:	PROCEDURE – application for stay of execution of primary judgment until determination of proceedings in High Court – whether substantial prospect of success in special leave application – where question in appeal is one of fact, without general application and raises no question of principle – stay refused
Cases Cited:	Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; 161 CLR 681 Rinehart v Welker [2012] NSWCA 1; 83 NSWLR 347
Category:	Procedural and other rulings
Parties:	Virginia Louise Buckworth (Applicant) Gladio Pty Ltd (First Respondent) Ashdown Home Units Pty Ltd (Second Respondent)
Representation:	Counsel: D E Grieve QC (Applicant) G Lucarelli (First Respondent)   Solicitors: PCR Law & Associates (Applicant) Minter Ellison (First Respondent) Meridian Lawyers (Second Respondent)
File Number(s):	2015/247102
Decision under appeal:

[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.]

JUDGMENT

1. On 23 March 2016 the appeal in this proceeding was dismissed (Buckworth v Gladio Pty Ltd [2016] NSWCA 54). Ms Buckworth (the applicant) has filed an application for special leave to appeal to the High Court from that decision.

2. By her notice of motion filed 6 May 2016, the applicant seeks an order that a stay granted by Emmett JA on 31 August 2015 with respect to the enforcement of the primary judgment be extended until determination of her proceedings in the High Court. As a condition of that stay, the applicant paid an amount of $162,221 into an account of the first respondent’s solicitors. Because the stay order made by Emmett JA was “until the determination of the appellant’s appeal” and that has occurred, her application is to be treated as being for a further stay order.

3. In Rinehart v Welker [2012] NSWCA 1; 83 NSWLR 347, this Court held (at [48]) that in considering applications to stay a judgment or order which is the subject of an application for leave to appeal to the High Court, the approach to be adopted is that stated by Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) [1986] HCA 84; 161 CLR 681. In that case, his Honour observed that “exceptional circumstances must be shown” before the exercise of that power is warranted. Brennan J continued (at 685):

   In exercising the extraordinary jurisdiction to…