Dierickx v HP Mercantile Pty Ltd - [2014] NSWCA 21

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Dierickx v HP Mercantile Pty Ltd [2014] NSWCA 21
Hearing dates: 10 February 2014
Decision date: 10 February 2014
Before: Basten JA
Decision:
1. Order that within 60 days of the delivery of these orders the judgment sum in the amount of $273,721.52 be paid by Ludo Victor Dierickx and Wendy Anne Dierickx into a controlled moneys account to be administered by Piper Alderman and Versace McKenzie Lawyers jointly and that those moneys be held in such account until further order of a judge of this Court or the High Court.
2. Costs of the motion including the amended notice of motion filed today be HP Mercantile Pty Ltd's costs, to follow the order made in the special leave application.
3. Liberty to apply.
[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.]

Catchwords: PRACTICE AND PROCEDURE - interlocutory application - stay of judgment pending application for special leave to appeal to the High Court - need for exceptional circumstances - offer to pay judgment debt into court or a jointly managed account - financial capacity of respondent to repay if appeal successful - merit of application to High Court - element of public importance
Legislation Cited: Judiciary Act 1903 (Cth), s 35A
Cases Cited: Jennings Constructions Limited v Burgundy Royale Pty Limited (No 1) 1986 HCA 84; 161 CLR 681
Rinehart v Welker [2012] NSWCA 1, 83 NSWLR 347
Category: Interlocutory applications
Parties: Ludo Victor Dierickx (First Applicant)
Wendy Anne Dierickx (Second Applicant)
HP Mercantile Pty Ltd (Respondent)
Representation:
Counsel:

Ms S Fendekian (Applicants)
Mr P Knowles (Respondent)
Solicitors:
Piper Alderman (Applicants)
Versace McKenzie (Respondent)

File Number(s): CA 2012/290553
Decision under appeal

Jurisdiction:

9111

Citation:

[2012] NSWSC 1005

Date of Decision:

2012-08-31 00:00:00

Before:

White J

File Number(s):

SC 2006/294773

Judgment

BASTEN JA: Judgment in this matter was handed down in this Court on 23 December 2013. The effect of the judgment was to overturn orders made by White J at the trial.

This Court was divided in that the President would have dismissed the appeal for reasons given by White J in respect of particular aspects in dispute. The majority, Meagher and Emmett JJA, allowed the appeal and set aside the orders made by the primary judge, giving judgment in place of those orders, against the present applicants for the amounts sought to be recovered from them.

The applicants have sought special leave to appeal to the High Court of Australia. They now seek a stay of the enforcement of the judgment in this Court.

The Court was taken to authorities with respect to…

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: [2014] NSWCA 21
Decision Date: 10 February 2014

CaseChat Overview and Summary

In *Dierickx v HP Mercantile Pty Ltd*, the applicants, Ludo Victor Dierickx and Wendy Anne Dierickx, sought a stay of a judgment debt pending an application for special leave to appeal to the High Court of Australia. The respondent, HP Mercantile Pty Ltd, was the judgment creditor. The matter came before Basten JA of the Court of Appeal of the Supreme Court of New South Wales.

The primary legal issue before the Court was whether exceptional circumstances existed to warrant a stay of the judgment. This involved considering the applicants' financial capacity to repay the judgment sum if their appeal to the High Court were successful, the merit of their proposed application for special leave, and whether the matter possessed an element of public importance. The Court also considered the applicants' offer to pay the judgment sum into a controlled moneys account.

Basten JA reasoned that a stay of execution pending an application for special leave to appeal to the High Court is an extraordinary remedy that requires the demonstration of exceptional circumstances. His Honour noted that while the applicants had offered to pay the judgment sum into a jointly managed account, this did not, in itself, constitute exceptional circumstances. The Court considered the merits of the proposed appeal and the public importance of the issues raised, but ultimately found that the threshold for granting a stay had not been met.

Consequently, the Court ordered that the judgment sum of $273,721.52 be paid by the applicants into a controlled moneys account administered jointly by Piper Alderman and Versace McKenzie Lawyers within 60 days. These funds were to be held in the account until further order of a judge of the Court of Appeal or the High Court. The costs of the motion were awarded to the respondent, to follow the order made in the special leave application, with liberty to apply.

Orders

Orders of the court

1. Order that within 60 days of the delivery of these orders the judgment sum in the amount of $273,721.52 be paid by Ludo Victor Dierickx and Wendy Anne Dierickx into a controlled moneys account to be administered by Piper Alderman and Versace McKenzie Lawyers jointly and that those moneys be held in such account until further order of a judge of this Court or the High Court.

2. Costs of the motion including the amended notice of motion filed today be HP Mercantile Pty Ltd's costs, to follow the order made in the special leave application.

3. Liberty to apply.

[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.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Dierickx v HP Mercantile Pty Ltd [2014] NSWCA 21
Hearing dates:	10 February 2014
Decision date:	10 February 2014
Before:	Basten JA
Decision:	1. Order that within 60 days of the delivery of these orders the judgment sum in the amount of $273,721.52 be paid by Ludo Victor Dierickx and Wendy Anne Dierickx into a controlled moneys account to be administered by Piper Alderman and Versace McKenzie Lawyers jointly and that those moneys be held in such account until further order of a judge of this Court or the High Court. 2. Costs of the motion including the amended notice of motion filed today be HP Mercantile Pty Ltd's costs, to follow the order made in the special leave application. 3. Liberty to apply. [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.]
Catchwords:	PRACTICE AND PROCEDURE - interlocutory application - stay of judgment pending application for special leave to appeal to the High Court - need for exceptional circumstances - offer to pay judgment debt into court or a jointly managed account - financial capacity of respondent to repay if appeal successful - merit of application to High Court - element of public importance
Legislation Cited:	Judiciary Act 1903 (Cth), s 35A
Cases Cited:	Jennings Constructions Limited v Burgundy Royale Pty Limited (No 1) 1986 HCA 84; 161 CLR 681 Rinehart v Welker [2012] NSWCA 1, 83 NSWLR 347
Category:	Interlocutory applications
Parties:	Ludo Victor Dierickx (First Applicant) Wendy Anne Dierickx (Second Applicant) HP Mercantile Pty Ltd (Respondent)
Representation:	Counsel: Ms S Fendekian (Applicants) Mr P Knowles (Respondent) Solicitors: Piper Alderman (Applicants) Versace McKenzie (Respondent)
File Number(s):	CA 2012/290553
Decision under appeal	Jurisdiction: 9111 Citation: [2012] NSWSC 1005 Date of Decision: 2012-08-31 00:00:00 Before: White J File Number(s): SC 2006/294773