Dogra v Dogra (No 3)

Case [2024] NSWCA 208


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Dogra v Dogra (No 3) [2024] NSWCA 208
Hearing dates: 19 August 2024
Date of orders: 19 August 2024
Decision date: 19 August 2024
Before: Griffiths AJA
Decision:

In respect of the appellant’s notice of motion filed 12 August 2024, order that:

1.  Order 4 of the orders made by Lindsay J on 22 December 2023 be stayed until 21 days after the determination of the appeal in these proceedings or until further order.

2.  The judgment/order of the District Court of New South Wales, Sydney Registry, Proceedings No. 2024/00275250 issued on 26 July 2024 be stayed until 21 days after the determination of the appeal in these proceedings or until further order.

3.  Costs of the motion be costs in the appeal.

In respect of the second respondent’s notice of motion dated 14 August 2024, order that:

1.  Upon the giving of an undertaking by the solicitor of the second respondent to bear any costs of filing, the notice of motion dated 14 August 2024 be filed in Court.

2.  Order 4 of the orders made by Lindsay J on 22 December 2023 be stayed until 21 days after the determination of the appeal in these proceedings or until further order.

3.  The judgment/order of the District Court of New South Wales, Sydney Registry, Proceedings No. 2024/00275250 issued on 26 July 2024 be stayed until 21 days after the determination of the appeal in these proceedings or until further order.

4.  Costs of the motion be costs in the appeal.

Catchwords:

APPEALS – procedure – stay pending appeal – where bankruptcy notices issued against appellant and second respondent in respect of costs order made below – whether risk that enforcement of costs order would stultify appeal and cross-appeal

Legislation Cited:

Bankruptcy Act 1966 (Cth), ss 40(1)(g), 41(6A)(a), 60(2)

Cases Cited:

Alexander v Cambridge Credit Corporation Ltd (receivers appointed) (1985) 2 NSWLR 685

City Garden Australia Pty Ltd (subject to deed of company arrangement) as trustee for the Ming Tian City Garden Unit Trust v Gemi 130 Pty Ltd [2024] NSWCA 139

Dogra v Dogra [2024] NSWCA 127

Dogra v Dogra (No 2) [2024] NSWCA 154

Fox v Percy (2003) 214 CLR 118; [2003] HCA 22

Kairouz v Jasper Nominees Ltd [2024] VSCA 68

McBride v Sandland (No 2) (1918) 25 CLR 369; [1918] HCA 59

Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd [2024] NSWCA 128

Porges v Adcock Private Equity Pty Ltd [2018] NSWCA 285

Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2016] NSWCA 234

Sharpe v W H Bailey & Sons Pty Ltd [2014] FCA 921

Texts Cited:

Nil

Category:Procedural rulings
Parties: Aruna Dogra (Appellant)
Mamta Dogra (First Respondent)
Kapil Dogra (Second Respondent)
Representation:

Counsel:
C D Freeman (Appellant)
D O’Dea (sol) (First Respondent)
L Katsinas (Second Respondent)

Solicitors:
Goodwin & Co Lawyers (Appellant)
O’Dea Lawyers (First Respondent)
J.P. Capsanis & Co Lawyers (Second Respondent)
File Number(s): 2024/8811

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Details
AGLC
Dogra v Dogra (No 3) [2024] NSWCA 208
Case
[2024] NSWCA 208
Decision Date

CaseChat Overview and Summary

This matter concerned applications for a stay pending appeal. The appellant and the second respondent sought to stay the enforcement of a costs order made by Lindsay J on 22 December 2023, and a subsequent judgment issued by the District Court of New South Wales on 26 July 2024. The primary concern raised was the risk that the enforcement of these orders, particularly through the issuance of bankruptcy notices, would stultify the appeal and cross-appeal.

The central legal issue before the court was whether a stay should be granted to prevent the enforcement of the costs order and the District Court judgment pending the determination of the appeal and cross-appeal. This involved assessing the potential prejudice to the appellants if the stay was not granted, and the potential prejudice to the respondents if it was.

Griffiths AJA considered the principles governing stays pending appeal, particularly in circumstances where bankruptcy notices had been issued. The court determined that a stay was warranted to preserve the status quo and ensure that the appeal and cross-appeal could be heard and determined without the proceedings being rendered nugatory by the enforcement of the impugned orders. The court ordered that Order 4 of the orders made by Lindsay J on 22 December 2023, and the judgment of the District Court of New South Wales issued on 26 July 2024, be stayed until 21 days after the determination of the appeal or until further order. The costs of the motions were made costs in the appeal.

Orders

Orders of the court

In respect of the appellant’s notice of motion filed 12 August 2024, order that:

1. Order 4 of the orders made by Lindsay J on 22 December 2023 be stayed until 21 days after the determination of the appeal in these proceedings or until further order.

2. The judgment/order of the District Court of New South Wales, Sydney Registry, Proceedings No. 2024/00275250 issued on 26 July 2024 be stayed until 21 days after the determination of the appeal in these proceedings or until further order.

3. Costs of the motion be costs in the appeal.

In respect of the second respondent’s notice of motion dated 14 August 2024, order that:

1. Upon the giving of an undertaking by the solicitor of the second respondent to bear any costs of filing, the notice of motion dated 14 August 2024 be filed in Court.

2. Order 4 of the orders made by Lindsay J on 22 December 2023 be stayed until 21 days after the determination of the appeal in these proceedings or until further order.

3. The judgment/order of the District Court of New South Wales, Sydney Registry, Proceedings No. 2024/00275250 issued on 26 July 2024 be stayed until 21 days after the determination of the appeal in these proceedings or until further order.

4. Costs of the motion be costs in the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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