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Dogra v Dogra (No 3)

Dogra v Dogra (No 3)

Case [2024] NSWCA 208 19 August 2024

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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

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 Dogra v Dogra (No 3)

Details

AGLC: Dogra v Dogra (No 3) [2024] NSWCA 208
Case: [2024] NSWCA 208
Decision Date: 19 August 2024

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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Citations

AGLC Citation

Dogra v Dogra (No 3) [2024] NSWCA 208

Most Recent Citation

Nyangbul v State of New South Wales [2025] NSWCA 119

Cases citing this decision · 1 of 1 shown

Nyangbul v State of New South Wales
[2025] NSWCA 119 Para 18

…As noted in Dogra v Dogra (No 3) [2024] NSWCA 208 at [19]:…

View all 1 citing cases →

Cases cited in this decision · 14 of 14 shown

Dogra v Dogra (No 2)
[2024] NSWCA 154 Para 3

…Payne JA also delivered the second interlocutory judgment (see Dogra v Dogra (No 2) [2024] NSWCA 154). It involved a motion which was heard and determined on 21 June 2024. It resulted in a new hearing date being fixed for the appeal on 16 September 2024. Consequential orders were made for that hearing to occur.…
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 Para 18

…r JA in 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 at [21]):…
Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd
[2024] NSWCA 128 Para 18

…les are well-known and are not in dispute. They are conveniently summarised by Payne JA in Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd [2024] NSWCA 128 at [5] (cited by Meagher JA in City Garden Australia Pty Ltd (subject to deed of company arrangement) as trustee for the Ming Tian City Garden Unit T…
Dogra v Dogra
[2024] NSWCA 127 Para 2

…cember 2023 (see Dogra v Dogra [2023] NSWSC 1642). There have been two previous interlocutory proceedings in this Court. In the first ( Dogra v Dogra [2024] NSWCA 127) Payne JA dismissed Mamta’s application to have the appeal dismissed or, alternatively, to obtain an order for security for costs. It should be noted…
Pamplin v Irwin
[2024] NSWCA 112 Para 11

…nt prevails on those two questions, then the Court is to consider the balance of convenience and the competing rights of the parties: Pamplin v Irwin [2024] NSWCA 112 at [11] per Leeming JA.…
Kairouz v Jasper Nominees Limited
[2024] VSCA 68 Para 27

…ctoria, where “special or exceptional circumstances” must be shown to exist before a stay will be granted (see, eg, Kairouz v Jasper Nominees Ltd [2024] VSCA 68 at [22]-[23] per Walker JA). In that case her Honour granted the stay for reasons which are set out at [25]:…
Dogra v Dogra
[2023] NSWSC 1642 Para 2

…Aruna has appealed from orders made by Lindsay J on 22 December 2023 (see Dogra v Dogra [2023] NSWSC 1642). There have been two previous interlocutory proceedings in this Court. In the first ( Dogra v Dogra [2024] NSWCA 127) Payne JA dismissed Mamta’s application to have the appeal dismissed or, alternatively, to ob…
Porges v Adcock Private Equity Pty Ltd
[2018] NSWCA 285 Para 26

…In granting a stay pending appeal in Porges v Adcock Private Equity Pty Ltd [2018] NSWCA 285, Macfarlan JA considered as important the risk that the Federal Court would not extend the time for compliance with the bankruptcy notice if a stay were not granted; the applicant’s likely inability to comply with the bankr…
Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd
[2016] NSWCA 234 Para 25

…In Shade Systems Pty Ltd v Probuild Constructions (Aust) Pty Ltd [2016] NSWCA 234, the appellant, Shade, sought to stay the costs order made below. Shade was close to insolvency. Basten JA granted the stay. One reason was that the appeal raised an important issue as to the ability to quash an adjudicator’s determin…
Sharpe v W H Bailey & Sons Pty Ltd
[2014] FCA 921 Para 22

…rt is whether there is in place a stay in relation to the judgment which underpins the bankruptcy notices (see Sharpe v W H Bailey & Sons Pty Ltd [2014] FCA 921 at [29] per Gleeson J).…
Fox v Percy
[2003] HCA 22

…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 (Austral…
Kalifair Pty Ltd v Digi-Tech (Australia) Ltd
[2002] NSWCA 383

…of interlocutory relief before trial: Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at 694-5, Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 at [18]. A party applying for a stay must show, first, that the appeal raises serious issues for determination by the appellate cou…
McBride v Sandland (No 2)
[1918] HCA 59 Para 24

…The starting point is that a successful party is entitled to the fruits of its judgment ( McBride v Sandland (No 2) (1918) 25 CLR 369 at 374; [1918] HCA 59). Despite that, courts have often granted stays pending appeals where the appellant is at risk of being made bankrupt if a stay were not granted. The essenti…
Alexander v Cambridge Credit Corporation Ltd
(1987) 9 NSWLR 310

…are well-settled, as the parties on this application agreed. They are analogous to those which govern the grant of interlocutory relief before trial: Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at 694-5, Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 at [18]. A party applying for a stay must sh…

Legislation cited in this decision · 1

Bankruptcy Act 1966 (Cth)
40(1)(g), 41(6A)(a), 60(2) 4 mentions (from Para 10)

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