Ducker v Smith (No 1)

[2010] NSWCA 247

New South Wales

Court of Appeal

CITATION:	DUCKER v SMITH (No 1) [2010] NSWCA 247
HEARING DATE(S):	20 September 2010
JUDGMENT DATE:	20 September 2010
JUDGMENT OF:	Basten JA at 1
EX TEMPORE JUDGMENT DATE:	20 September 2010
DECISION:	(1) Matter stood over until 9.30am Monday, 27 September 2010 so that the question of the variation of the stay can be considered. (2) Costs of today are reserved.
CATCHWORDS:	APPEAL – civil – whether cause for expedition of the hearing of the appeal - APEAL – civil – whether orders from primary judge should be stayed pending appeal - PROCEDURE – civil – orders – variation of stay
CATEGORY:	Procedural and other rulings
PARTIES:	Alan Graham Ducker - Applicant Janet Adele Smith - Respondent
FILE NUMBER(S):	CA 2010/269156
COUNSEL:	E Finnane - Applicant D Reid - Respondent
SOLICITORS:	Irene E Pickel Pty Ltd - Applicant Mitry Lawyers - Respondent
LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	SC 2009/287699
LOWER COURT JUDICIAL OFFICER:	Tamberlin AJ
LOWER COURT DATE OF DECISION:	14 May 2010

CA 2010/269156

BASTEN JA

20 September 2010

Alan Graham DUCKER v Janet Adele SMITH (No 1)

Judgment

1 HIS HONOUR: This matter comes before the Court on a notice of motion seeking expedition in relation to the hearing of an appeal from the judgment and orders of Acting Justice Tamberlin made on 14 May 2010.

2 The first of those orders required Mr Ducker, the appellant, upon the respondent, Ms Smith, tendering the amount of $200,000 to transfer to Ms Smith all his right, title and interest in a property at Alpine, New South Wales.

3 Ms Smith has made arrangements with her bank to provide the amount of $200,000 to be secured against the property. I am told, although there is no specific evidence in this respect before me, that there has been a tender of that amount but that Mr Ducker has declined to execute the necessary documents to permit the transfer to go ahead. I note that the trial judge secondly ordered that if the amount was not tendered within 90 days of the date of the orders, made on 14 May 2010, steps should be taken expeditiously and in good faith to sell the property at fair market price.

4 On a motion which appears to have been filed after the 90 days had expired and at which time, on what I have been told, he was in breach of the orders of the Court, Mr Ducker sought a stay of the orders made by Tamberlin AJ on 14 May. On what appears to be 4 August 2010, Gzell J stayed all the orders made by Tamberlin AJ on 14 May, pending determination by this Court of Mr Ducker’s proposed appeal or until further order of the Court or of this Court. That order was made upon an undertaking by counsel that the appeal would be prosecuted with all due despatch. (Whether that has happened is doubtful, time limits being just complied with as they arise.)

5 Gzell J also ordered that the time for tender by Ms Smith of the amount of $200,000 be extended until 14 days after orders concluding the proceedings in this Court.

6 The matter now comes before me because Ms Smith, having obtained access to the money, has been informed by the bank that it would remain available until 18 December 2010, but that she is probably ineligible for a loan if she were required to make a fresh application thereafter. Accordingly, she seeks expedition of the hearing of the appeal.

7 I do not have a full chronology of how these events have transpired. However, it appears that the parties’ separation occurred in February 2007 and the matter did not come on for hearing until April 2010. It does not appear on the face of it that the parties have been anxious to expedite the matter up until this point in time. I understand the financial difficulty in which Ms Smith now finds herself. I also take into account evidence of her medical condition, a medical certificate having been tendered this morning. However, these are not factors which would normally warrant a grant of expedition in this Court.

8 The lists would not permit the matter to be listed, let alone judgment given, before 18 December 2010, without some other matter which is already fixed for hearing being removed from the list. That is not a step I propose to take.

9 What I do not fully understand at this stage is why the orders made at trial were stayed pending determination of the appeal. As I have indicated to the parties, it seems to me that there is no need to stay order 1, which requires the transfer of the property to the respondent upon the tender of the $200,000 by Ms Smith. I do not understand why it has been necessary to take that step. So long as there was an undertaking from the respondent not to dispose of her right, interest and title in the property pending the determination of the appeal and until further order of the Court, I do not presently see why the transfer should not proceed.

10 I am told the undertaking should not in itself provide a difficulty. However, Mr Finnane, who appears for Mr Ducker this morning is not familiar with the circumstances which gave rise to the stay. He should have an opportunity to obtain instructions; indeed both parties should have an opportunity to consider their positions before this Court makes orders in relation to the stay.

11 Mr Finnane makes the point that the mortgage to the bank will apparently be for a sum significantly in excess of the amount $200,000, because it is common ground that Ms Smith needs money by way of capital to run her business, if the premises are to be used for the business to which she had earlier put them. There may be an issue as to whether Mr Ducker will be protected in relation to the 75% interest in the property which he claims.

12 There are clearly issues to be resolved. The only order I propose to make this morning is that the matter be stood over until 9.30am on Monday, 27 September so that the question of the variation of the stay can be considered. If the parties are in a position to come to an agreement before that time, they should notify my associate and if necessary, consent orders can be made next Monday.

13 I reserve the costs of today.

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