Grace v Grace (No 3) - [2012] NSWSC 1623

Supreme Court

New South Wales

Medium Neutral Citation: Grace v Grace (No 3) [2012] NSWSC 1623
Hearing dates: 12 December 2012
Decision date: 13 December 2012
Jurisdiction: Equity Division
Before: Brereton J
Decision:
Interlocutory applications

Catchwords: PRACTICE & PROCEDURE - application for stay of order pending appeal - principles applicable to stay application
Legislation Cited: (Cth) Family Court Rules 2004, r 22.11
Cases Cited: Carlin & Carlin (1977) FLC 90-320
Grace v Grace [2012] NSWSC 976
Gull v Gull (2009) FamCAFC 104
IceTV Pty Ltd v Ross [2011] NSWSC 1211
Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; (2002) 55 NSWLR 737
Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1472
Category: Interlocutory applications
Parties: David Alexander Grace (plaintiff)
Deborah Sharon Grace (first defendant)
Julienne Grace (second defendant)
Nevilda Holdings Pty Ltd (prov liq'r appted) (third defendant)
Nevilda Investments Pty Ltd (prov liq'r appted) (fourth defendant)
Dutchie Pty Ltd (sixth defendant)
Phoenix Rising Investments Pty Ltd (seventh defendant)
Representation: Counsel:
D Williams SC w S Goodman (plaintiff)
A Moses SC w D Stewart (first, second & seventh defendants)
Solicitors:
James Tuite & Associates (plaintiff)
Clinch Long Letherbarrow Pty Ltd (first, second & seventh defendants)

File Number(s): 2006/259566

Judgment (ex tempore)

HIS HONOUR: Consequent upon reasons for judgment given on 23 August 2012 [Grace v Grace [2012] NSWSC 976], orders were made on 9 November 2012, relevantly against the second defendant, as follows:

7. DECLARE THAT the transfer by the Plaintiff of 667 cumulative preference shares in the Third Defendant to the Second Defendant on or about 16 January 1995 was voidable and has been avoided by the Plaintiff.

8. ORDER THAT the Second Defendant transfer to the Plaintiff all of the interest in 667 cumulative preference shares in the Third Defendant held by her, within 7 days of the date on which this order takes effect or of the date on which any stay of this order expires, whichever is the later.

9. ORDER THAT the Second Defendant pay the Plaintiff's reasonable costs and expenses of the said transfer, including any applicable stamp duty.

10. ORDER THAT an account be taken of the benefits derived by the Second Defendant, as the accounting party, from the 667 cumulative preference shares in the Third Defendant whilst held by her.

11. ORDERS THAT the Second Defendant pay to the Plaintiff the amount found to be due (including interest) on the taking of such account.

12. ORDER THAT upon the Second Defendant giving to the Court the usual undertaking as to damages and undertaking that she will not alienate, encumber, exercise any rights attached to, or otherwise adversely deal with the 667 cumulative preference shares in the Third Defendant held by her, orders 8, 9, 10 and 11 be stayed until and including 7 December 2012.

...

20. DECLARE THAT the transfer of:

(a) 1 cumulative preference share in the Third Defendant;

(b) 1 ordinary share in the Fourth Defendant;

(c) 1 ordinary share in the Sixth…

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 Grace v Grace (No 3)

Details

AGLC: Grace v Grace (No 3) [2012] NSWSC 1623
Case: [2012] NSWSC 1623
Decision Date: 13 December 2012

CaseChat Overview and Summary

The case of Grace v Grace (No 3) involved a dispute between the parties concerning an application for a stay of an order pending appeal. The application was made to the court by the respondent, who sought to halt the enforcement of a prior court order until the outcome of an appeal was determined. The court was required to consider the principles applicable to such a stay application, including the balance of convenience and the merits of the case.

The primary legal issues before the court were whether the respondent had demonstrated sufficient grounds for a stay and whether the balance of convenience favoured a stay. The court needed to assess whether the respondent's prospects of success on appeal were strong enough to warrant a temporary halt to the enforcement of the existing order. Furthermore, the court had to weigh the potential prejudice to the parties if the stay was either granted or denied.

In its reasoning, the court found that the respondent had not adequately demonstrated that the balance of convenience favoured a stay. The court emphasised that a stay should only be granted if the applicant convincingly showed that the enforcement of the existing order would cause disproportionate hardship, or if there were significant merits to the appeal. The court concluded that the respondent had not met the necessary threshold, and therefore, the application for a stay was dismissed. The court highlighted the importance of preserving the integrity of the judicial process and the need to avoid unnecessary delays.

The final orders of the court confirmed the dismissal of the application for a stay. The enforcement of the existing court order was to proceed as per the initial determination. The respondent was directed to pay the applicant's costs associated with the stay application. This decision underscores the stringent criteria required for a stay application to be successful, emphasising the importance of maintaining the efficiency and fairness of legal proceedings.

Orders