Critchley v Conway (No 2)

[2009] NSWCA 217

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Critchley & Ors v Conway & Anor (No 2) [2009] NSWCA 217

FILE NUMBER(S):
40181/09

HEARING DATE(S):
13 July 2009

JUDGMENT DATE:
27 July 2009

PARTIES:
Stephen Critchley (First Appellant)
Mudgee Wines Pty Limited (Second Appellant)
Eurunderee Wines Pty Limited (Third Appellant)
William James Whalley (Fourth Appellant)
Jane Margaret McLean (Fifth Appellant)
David Conway (First Respondent)
Mark Norman Thompson (Second Respondent)

JUDGMENT OF:
Beazley JA     

LOWER COURT JURISDICTION:
Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S):
SC 6429/2008

LOWER COURT JUDICIAL OFFICER:
Debelle AJ

LOWER COURT DATE OF DECISION:
5 June 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
Conway v Critchley & Ors [2009] NSWSC 499

COUNSEL:
G Sirtes SC (Appellants)
T Hall (Solicitor) (Respondents)

SOLICITORS:
Leonard Legal (Appellants)
Hall Partners (Respondents)

CATCHWORDS:
PRACTICE AND PROCEDURE – application for stay of judgment pending determination of appeal – application granted upon conditions

LEGISLATION CITED:

CASES CITED:
Alexander v Cambridge Credit Corp Ltd (1987) 9 NSWLR 310; (1987) 12 ACLR 202
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

TEXTS CITED:

DECISION:
Upon condition that the appellants pay to the Bank of Queensland on or before the due date, the monthly rental sum of $5,416.67 payable under the rental agreement between the Bank and the first respondent and his wife:
1. Order that the order made by Debelle AJ on 5 June 2009, that the appellants deliver up to the first respondent the items referred to in item (n) of the Schedule to those orders, be stayed until the disposition of the concurrent hearing for leave to appeal and the appeal or until further order;
2. Direct the appellants to advise the first respondent’s solicitor of the making of each such payment within 24 hours of the payment being made;
3. The appellants are to pay to the first respondent one half of the costs of preparation for the hearing of the notice of motion, together with the costs of the hearing on 29 June 2009.  The balance of the costs of the preparation for the hearing of the notice of motion and the costs of 13 July 2009 are costs of the appeal;
4. Grant liberty to apply within 24 hours in respect of the formulation of these orders or in respect of any further directions in respect of the implementation of the stay.

JUDGMENT:

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40181/09

BEAZLEY JA

27 July 2009

Stephen Critchley & Ors v David Conway & Anor (No 2)

Judgment

1. HER HONOUR:  On 29 June 2009, I gave judgment in this matter in which I refused to order a stay of orders made by Debelle AJ insofar as those orders related to certain barrels of wine and farming equipment.  I stood over the question as to whether a stay should be granted in respect of 33 storage tanks the first respondent contended were located on…