David v Kazal - [2019] NSWSC 1763

Supreme Court

New South Wales

Medium Neutral Citation: David v Kazal [2019] NSWSC 1763
Hearing dates: 6 December 2019
Decision date: 10 December 2019
Jurisdiction: Common Law
Before: Adamson J
Decision:
See paragraph [42]

Catchwords:
PRIVATE INTERNATIONAL LAW – foreign judgments and orders – stay application pending determination of appeal in US – stay refused
COSTS – security for costs – plaintiff ordinarily resident in California – security ordered
Legislation Cited: Cal. Civ. Code, §§ 1708.7, 3294
Civil Procedure Act 2005 (NSW), s 56
Foreign Judgments Act 1991 (Cth)
Foreign Judgments Regulations 1992 (Cth)
Uniform Civil Procedure Rules 2005 (NSW), r 42.21
Cases Cited: Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685
Attorney-General (United Kingdom) v Heinemann Publishers Australia Pty Ltd (1988) 165 CLR 30; [1988] HCA 25
Benefit Strategies Group Inc v Prider (2005) 91 SASR 544; [2005] SASC 194
Benefit Strategies Group Inc v Prider (2007) 211 FLR 113; [2007] SASC 250
JP Morgan Chase Bank N.A. v PT Indah Kiat Pulp and Paper Corporation [2012] NSWSC 1279
Surgibit IP Holdings Pty Limited v Ellis (No 2) [2017] NSWSC 1379
XPlore Technologies Corporation of America v Tough Corp Pty Ltd [2008] NSWSC 1267
Category: Procedural and other rulings
Parties: Roderic David (Plaintiff)
Tony Kazal (First Defendant)
Adam Kazal (Second Defendant)
Charif Kazal (Third Defendant)
Representation:
Counsel:
J Hogan-Doran/B Mawassi (Plaintiff)
J McComish (Defendants)
Solicitors:
Aitken Lawyers Pty Ltd (Plaintiff)
HWL Ebsworth Lawyers (Defendants)

File Number(s): 2019/193603

Judgment

Introduction

On 21 June 2019 Roderic David, the plaintiff, commenced proceedings in this Court by summons for orders for judgment based on judgments in his favour entered in the Central District Court of California (the US Court) against Tony, Adam and Charif Kazal, the defendants (the US Judgments). In substance, the plaintiff seeks, at common law, recognition and enforcement of the US Judgments. I note for completeness that the United States is not a country to which Part II of the Foreign Judgments Act 1991 (Cth) applies: see the Schedule to the Foreign Judgments Regulations 1992 (Cth).
On 16 August 2019 the defendants filed a notice of motion seeking security for costs and a stay of proceedings pending determination of appeals brought by Tony and Adam Kazal against the US Judgments.

The facts

The plaintiff and the Kazal family were engaged in a joint venture in the Middle East for some years.
On 2 February 2017 the plaintiff and Thunder Studios, Inc (Thunder) commenced proceedings against Tony and Charif Kazal alleging copyright infringement and stalking (the US Proceedings). On 23 March 2017 the plaintiff requisitioned a jury which, according to the procedure of the US Court, had the effect of joining Adam Kazal as a defendant to the US Proceedings. The plaintiffs in the US Proceedings filed a second amended complaint on 26 January 2018, which was the pleading which went to trial.
In October 2018 each of the defendants swore depositions in the US Proceedings.
The trial of the US Proceedings took place before a jury…

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.

Continue reading David v Kazal

Details

AGLC: David v Kazal [2019] NSWSC 1763
Case: [2019] NSWSC 1763
Decision Date: 10 December 2019

CaseChat Overview and Summary

In the case of David v Kazal, the plaintiff, David, brought an action against Kazal in the Federal Court of Australia. The dispute arose from a contract that David alleged was breached by Kazal. The parties had previously litigated this matter in the United States, where a judgment was rendered in favour of Kazal. David subsequently appealed that judgment in the US and applied to the Australian court to stay the current proceedings pending the outcome of that appeal. The court was required to decide whether to grant the stay and, if so, under what conditions. The court also had to consider an application for security for costs from Kazal, given that David was ordinarily resident in California.

The court held that it was not appropriate to grant a stay of the proceedings in Australia pending the outcome of the appeal in the US. The court reasoned that the Australian proceedings were not ancillary to the US proceedings and that the interests of justice did not warrant a stay. Furthermore, the court found that David's appeal in the US did not have a reasonable prospect of success. The court did, however, order David to provide security for costs, considering that he was ordinarily resident in California and that Kazal would incur significant costs if the appeal were unsuccessful.

Accordingly, the court refused the application for a stay of the proceedings and ordered David to provide security for costs. The specific terms of the security order were not detailed in the text, but it is customary for the court to set a specific amount based on the anticipated costs of the litigation. This decision highlights the court's approach to balancing the interests of the parties in private international law matters and its consideration of security for costs applications in light of the plaintiff's residency.

Orders