Dwyer v Craft Printing Pty Ltd

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Dwyer v Craft Printing Pty Ltd [2009] NSWCA 254

FILE NUMBER(S):
40207/09

HEARING DATE(S):
10 August 2009

EX TEMPORE DATE:
10 August 2009

PARTIES:
Paul Andrew Dwyer (Appellant)
Craft Printing Pty Ltd (Respondent)

JUDGMENT OF:
Beazley JA     

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 1997/08

LOWER COURT JUDICIAL OFFICER:
Johnstone DCJ

LOWER COURT DATE OF DECISION:
7 April 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
Craft Printing Pty Limited v Dwyer [2009] NSWDC 190

COUNSEL:
I Archibald (Appellant)
G George (Respondent)

SOLICITORS:
W Lawyers (Appellant)
David R Purvis & Co (Respondent)

CATCHWORDS:
PRACTICE AND PROCEDURE – application for stay of judgment pending determination of appeal – appellant not in a position to pay the judgment debt and prosecute his appeal – risk that the refusal of a stay would render appeal futile – stay granted – no conditions on the stay imposed – respondent not in any worse position by the grant of a stay without conditions given the financial position of the appellant – by the expedition granted to accommodate interest of the appellant

LEGISLATION CITED:
Trade Practices Act 1974 (Cth), s 52

CASES CITED:
Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685
FAI Insurance Limited v Registrar of Workers Compensation Commission of New South Wales (1982) 1 NSWLR 239
McLean Tecnic Pty Ltd v Digi-Tech (Australia) Limited; Kalifair Pty Limited & Anor v Digi-Tech (Australia) Limited & Ors [2002] NSWCA 383; (2002) 55 NSWLR 737

TEXTS CITED:

DECISION:
1. The appeal is listed for hearing on 16 September 2009;
2. The appellant’s submissions are to be filed and served by 27 August 2009;
3. The appellant is to file and serve appeal books by 27 August 2009;
4. The respondent’s submissions are to be filed and served by 10 September 2009;
5. Leave is granted to re-list the matter before the Registrar on twenty-four hours notice;
6. A stay of the judgment of his Honour Johnstone DCJ given on 7 April 2009 pending determination of the appeal is granted;
7. The costs of the notice of motion be costs on the appeal;
8. The return date of the notice of appeal is vacated;  and
9. Any reply to the respondent’s submissions is to be filed by 14 September. 

JUDGMENT:

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40207/09

BEAZLEY JA

Ex tempore 10 August 2009

Paul Andrew Dwyer v Craft Printing Pty Limited

Judgment

1. HER HONOUR:  The appellant, Paul Andrew Dwyer, has filed an appeal against an order for judgment against him in a sum exceeding $400,000 made by Johnstone DCJ on 7 April 2009.  The debt for which judgment was given arose in circumstances where his Honour found that Mr Dwyer had signed a personal guarantee in respect of debts incurred by a company called Comsta Pty Limited (Comsta), of which he was the sole shareholder and director.  The guarantee was given in conjunction with an Application…