Driver v Botanical Water Technologies Pty Ltd - [2025] NSWSC 566

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Driver v Botanical Water Technologies Pty Ltd [2025] NSWSC 566
Hearing dates: 30 May 2025
Date of orders: 30 May 2025
Decision date: 02 June 2025
Jurisdiction: Equity - Commercial List
Before: Williams J
Decision:
1. Order that the final orders made by Justice Ball on 20 December 2024 in these proceedings be stayed until 5pm on the first day of the hearing in the New South Wales Court of Appeal of Appeal proceeding 476362 of 2025 conditional upon:
A. the fifth defendant filing with this Court, a written undertaking to the Court and to the second and fourth plaintiffs that he will not deal with:
(i) the property located at 63 Albany Road, Toorak, Victoria; or
(ii) any other property owned by the fifth defendant and for which the fifth defendant holds the beneficial interest other than in the ordinary course of business,
for the period of the stay; and
B. the fifth defendant granting to the second and fourth plaintiffs a charge in caveatable form over his property at 63 Albany Road, Toorak, Victoria securing the judgment debts arising from the orders made by this Court on 20 December 2024, subject to any contrary order of the Court of Appeal,
by 5pm on 3 June 2025.
2. Order that the stay in order 1 will take effect on and from 5pm on 3 June 2025 if the conditions set out in order 1 are complied with, and will not otherwise take effect.
3. Order that costs of the fifth defendant’s notice of motion filed 15 May 2025 are to follow the event of the appeal.

Catchwords:
PRACTICE AND PROCEDURE – stay of enforcement of judgment and orders pending appeal – consideration of terms and conditions of stay – where the fifth defendant has been served with bankruptcy notices issued by the second and fourth plaintiffs in respect of judgment debts arising from orders made by this Court – where an interim extension of time for compliance with those notices has been granted by the Federal Court of Australia pending determination of the fifth defendant’s application for an extension of time, which has been adjourned pending the determination of the fifth defendant’s present application for a stay – where the grant of a stay would adversely affect the second and fourth plaintiffs’ ability to oppose any further extension of time for compliance with the bankruptcy notices – where fifth defendant has offered an undertaking not to deal with his property for the period of any stay – whether it should be a condition of any stay that the fifth defendant grant the second and fourth plaintiffs a charge over his real property where judgment debts may already exceed value of the fifth defendant’s property – where risk of prejudice to second and fourth plaintiffs arises from the prospect that the fifth defendant’s liabilities will increase during the period of the stay – where no evidence of prejudice to the…

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 Driver v Botanical Water Technologies Pty Ltd

Details

AGLC: Driver v Botanical Water Technologies Pty Ltd [2025] NSWSC 566
Case: [2025] NSWSC 566
Decision Date: 02 June 2025

CaseChat Overview and Summary

The matter before the court involved the fifth defendant who had been served with bankruptcy notices by the second and fourth plaintiffs concerning judgment debts that arose from orders made by the court. The fifth defendant applied for a stay of enforcement of the judgment and orders pending an appeal. The primary legal issue before the court was whether a condition should be imposed on any stay that the fifth defendant grant the plaintiffs a charge over his real property, given that the judgment debts may already exceed the value of the fifth defendant’s property. The court also had to consider the risk of prejudice to the plaintiffs if the fifth defendant’s liabilities were to increase during the period of the stay.

The court found that there was a risk of prejudice to the plaintiffs if the fifth defendant’s liabilities were to increase during the period of the stay. The court noted that the fifth defendant had offered an undertaking not to deal with his property for the period of any stay. However, the court found that the imposition of a condition on the stay that the fifth defendant grant the plaintiffs a charge over his real property would not prejudice the fifth defendant, as there was no evidence of other current creditors. The court found that the risk of prejudice to the plaintiffs arose from the prospect that the fifth defendant’s liabilities would increase during the period of the stay.

The court held that it was appropriate to impose a condition on any stay that the fifth defendant grant the plaintiffs a charge over his real property. The court found that this condition would adequately protect the plaintiffs’ interests without causing undue prejudice to the fifth defendant. The court further found that the risk of prejudice to the plaintiffs outweighed any potential prejudice to the fifth defendant.

The court granted a stay of enforcement of the judgment and orders pending appeal, subject to the condition that the fifth defendant grant the plaintiffs a charge over his real property. The court also noted that the fifth defendant had offered an undertaking not to deal with his property for the period of any stay. The court considered this undertaking to be a sufficient condition to protect the plaintiffs’ interests.

Orders