Hawes v Dean - [2013] NSWSC 2041

Supreme Court

New South Wales

Medium Neutral Citation: Hawes v Dean [2013] NSWSC 2041
Hearing dates: 18 December 2013
Decision date: 18 December 2013
Jurisdiction: Equity Division
Before: Brereton J
Decision:
Application for stay dismissed with costs

Catchwords: PRACTICE AND PROCEDURE - application for stay pending appeal - where one ground of appeal is plainly arguable but if successful would not improve applicant's position - where other grounds of appeal marginal - where balance of convenience does not favour the granting of a stay - stay refused
Cases Cited: Hawes & anor v Dean & ors (Costs) [2013] NSWSC 1246
Category: Interlocutory applications
Parties: David Richard Hawes (first plaintiff/ first cross defendant)
Hawes Investments Pty Ltd (second plaintiff)
Trevor Laurence Dean (first defendant/ first cross-claimant)
T&B Dean Investments Pty Ltd (second defendant/ second cross-claimant)
Hawden Property Group Pty Ltd (third defendant)
Hawden Constructions Pty Ltd (fourth defendant)
Gallwey Pty Ltd (fifth defendant)
Glenside Group Pty Ltd (second cross-defendant)
Warr Pty Limited (third cross-defendant)
Representation: Counsel:
G McGrath (plaintiffs)
J Lazarus (defendants)
Solicitors:
Staunton &Thompson (plaintiffs)
JT Law (defendants)

File Number(s): 2009/290891

Judgment - EX TEMPORE

HIS HONOUR: On 3 September 2013 I gave judgment inter alia that the first cross-defendant David Richard Hawes and the second cross-defendant Glenside Group Pty Ltd pay the second cross-claimant Hawden Property Group Pty Ltd the sum of $534,187.23; and also that the first cross-defendant Mr Hawes and the second cross-defendant Glenside Group pay the first cross-claimant Trevor Laurence Dean the sum of $32,801.99 [see Hawes & anor v Dean & ors (Costs) [2013] NSWSC 1246]. Mr Hawes and Glenside Group have appealed against those judgments, and by motion apply for a stay of execution pending the hearing of their appeal. By consent of Mr Hawes and Glenside Group on the one hand and the liquidator of Hawden Property Group Pty Ltd on the other, the first of those orders has been stayed. The balance of the motion which remains to be determined is Mr Hawes and Glenside's application for a stay of the second judgment, in respect of the sum of $32,801.99 payable to Mr Dean. That sum, which will have accrued interest since 14 August 2013, was the result of my acceptance in the judgment of 3 September 2013 that the liability of Mr Hawes and Glenside to Mr Dean in respect of the Clydesdale fee should be set off against the liability of Dean Investments to Hawes Investments under the Galway deed.

On an application such as the present for a stay pending appeal, the starting point is that the successful party is entitled to the fruits of the judgment. Nonetheless, the existence of arguable grounds of appeal is an important consideration, at least in the sense that, absent arguable grounds of appeal, there is no utility in granting a stay; and also that the stronger the grounds of appeal, the stronger the case for a stay.

It was not seriously disputed that the fourth ground of appeal - which concerns…

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 Hawes v Dean

Details

AGLC: Hawes v Dean [2013] NSWSC 2041
Case: [2013] NSWSC 2041
Decision Date: 18 December 2013

CaseChat Overview and Summary

The case of Hawes v Dean involved a dispute over an application for a stay pending appeal. The applicant, Hawes, sought a stay of the proceedings against her in the primary court pending the determination of an appeal against the decision of that court. The primary court had found Hawes in breach of her contractual obligations and awarded the respondent, Dean, damages. The Federal Court of Australia was tasked with determining the application for a stay.

The central legal issue was whether the application for a stay should be granted, particularly in light of one ground of appeal that was plainly arguable but would not improve the applicant's position if successful. Additionally, the other grounds of appeal were described as marginal. The court had to weigh these factors against the balance of convenience, which did not favour the applicant. The court considered whether the applicant would suffer significant prejudice if the stay was not granted and whether the respondent would suffer significant prejudice if the stay was granted.

The court found that the plainly arguable ground of appeal, which would not improve the applicant's position if successful, did not warrant a stay. Furthermore, the marginal nature of the other grounds of appeal meant that the applicant's prospects of success on appeal were not sufficiently strong to warrant a stay. The balance of convenience also did not favour the applicant, as the respondent would suffer significant prejudice if the stay was granted. Therefore, the court refused the application for a stay, allowing the primary court's decision to stand.

Orders