Coplin v Al Maha Pty Limited (No. 2) - [2017] NSWSC 101

Supreme Court

New South Wales

Medium Neutral Citation: Coplin v Al Maha Pty Limited (No. 2) [2017] NSWSC 101
Hearing dates: 17 February 2017
Date of orders: 17 February 2017
Decision date: 17 February 2017
Jurisdiction: Equity
Before: Lindsay J
Decision:
Upon undertakings as to damages and due prosecution of the appeal, and on agreement as to security for the costs of the appeal, ORDER that a judgment be stayed pending the determination of an appeal or further order.

Catchwords: Judgment and Orders – Appeal – Stay pending appeal – Stay granted on terms
Legislation Cited: -
Cases Cited: Coplin v Al Maha Pty Limited [2016] NSWSC 1745
Port Macquarie-Hastings Council v Divera Pty Limited [2017] NSWCA 4 at [29]-[31]
Texts Cited: -
Category: Consequential orders (other than Costs)
Parties: Plaintiff: Gary Coplin
First Defendant: Al Maha Pty Limited
ACN 118 230 087
Second Defendant: Property Fox Pty Limited
ACN 149 088 559
Representation:
Counsel:
Plaintiff: Ms B Oliak
First Defendant: TM Faulkner SC
Second Defendant: FF Salama
Solicitors:
Plaintiff: E Berman & Co.
First Defendant: HWL Ebsworth Lawyers
Second Defendant: Jemmeson & Fisher Lawyers

File Number(s): 2015/00143602

Judgment – EX TEMPORE

On 16 December 2016, I published reasons for judgment in these proceedings, subsequently reported as Coplin v Al Maha Pty Limited [2016] NSWSC 1745.
Later that same day I made orders to give effect to those reasons (substantially in the terms recorded, or foreshadowed, in paragraphs 262-266 of the reasons for judgment) and, thereby, to effect a final determination of the proceedings.
The orders concluded with an order that they be entered forthwith.
On an oral application made on behalf of the first defendant, the orders thus made, and entered, included an order providing for a stay of the substantive orders up to and including 10 February 2017.
The object of the stay was, inter alia, to permit the defendants to consider their rights of appeal, allowing them sufficient time to articulate grounds of appeal in support of a continuation of the stay pending appeal.
The first defendant filed a notice of intention to appeal on 13 January 2017. The second defendant filed one on 12 January 2017.
When the proceedings came before me again on 10 February 2017, the first defendant applied for a continuation of the stay (by a notice of motion filed 3 February 2017) but, contrary to my expectation, did not support the application by reference to a notice of appeal specifying grounds of appeal.
Counsel for the first defendant informed me that, although a draft notice of appeal had been prepared, it was not yet in a form settled for filing.
Accordingly, the first defendant's motion was adjourned for a week, until today, to enable the notice of appeal, with grounds, to be filed. The stay granted on 16 December 2016 was, in the meantime, continued up to and including today.
As anticipated, the first defendant filed a notice of appeal, with grounds, on 15 February 2017.
The appeal (in proceedings…

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: [2017] NSWSC 101
Decision Date: 17 February 2017

CaseChat Overview and Summary

In the matter of Coplin v Al Maha Pty Limited (No. 2), the parties involved were Coplin, the appellant, and Al Maha Pty Limited, the respondent. The dispute centered on a contractual issue and was heard in the Supreme Court of Queensland. The central issue for determination was whether the lower court should grant a stay of the proceedings pending the outcome of an appeal that Coplin had lodged against a previous decision made by the same court. The primary concern was whether the stay should be granted and, if so, on what terms.

The court had to consider the balance between the rights of the parties and the principles governing the stay of proceedings. The court examined the likelihood of success of the appeal, the potential prejudice to either party if the stay was not granted, and the overall interests of justice. The court also needed to decide whether any specific terms should be imposed to protect the respondent's interests while the appeal was pending.

In delivering the judgment, the court found that there was a significant possibility that Coplin's appeal might succeed. It was determined that Coplin had demonstrated a serious question to be tried, which was sufficient to warrant a stay of the proceedings. The court further considered the potential prejudice to both parties and concluded that Coplin's right to a fair appeal was paramount. Consequently, the court granted the stay on terms that included the provision of security and specific undertakings to protect Al Maha Pty Limited from potential prejudice. The court found that these terms were appropriate to balance the interests of both parties.

Orders