Hoy v Hurst-Meyers (No 3) - [2023] ACTSC 6

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Hoy v Hurst-Meyers (No 3)
Citation:	[2023] ACTSC 6
Hearing Date:	19 January 2023
DecisionDate:	20 January 2023
Reasons Date:	20 January 2023
Before:	Loukas-Karlsson J
Decision:	See [59]
Catchwords:	CIVIL HEARING – JURISDICTION, PRACTICE AND PROCEDURE – urgent application in proceeding – application to stay orders made by primary judge – stay application brought in circumstances where a bankruptcy application and winding-up application being heard in two federal courts – consideration of test to apply – whether appeal will be rendered nugatory if stay not granted – application granted – consideration of any conditions to attach to stay – parties to provide written submissions concerning the appropriate conditions
Legislation Cited:	Corporations Act 2001 (Cth) s 459R Court Procedures Rules 2006 (ACT) r 5301
Cases Cited:	Dreamtime Supply Company Pty Ltd v Steadfast ICT Security [2021] ACTCA 38 Gindy v Capital Lawyers Pty Ltd [2022] ACTCA 66 Hoy v Hurst-Meyers (No 2) [2022] ACTSC 58 Hurst-Meyers v Hoy [2022] ACTCA 36 Hurst-Meyers v Hoy (No 2) [2022] ACTCA 38 Hurst-Meyers v Hoy (No 3) [2022] ACTCA 50 McLean Tecnic v Digi-Tech; Kalifair v Digi-Tech [2002] NSWCA 383; 55 NSWLR 737
Parties:	Gavin Robert Hoy (Plaintiff) Ralph George Noel Nancy Hurst-Meyers (First Defendant) RHM Industries Pty Ltd (Second Defendant)
Representation:	Counsel A Costin (Plaintiff) Self-represented (Defendants)
Solicitors Elringtons Lawyers (Plaintiff) Self-represented (Defendants)
File Number:	ACTSC 383 of 2019

LOUKAS-KARLSSON J:

Introduction

1․On 19 January 2023 I heard an urgent application filed earlier that day by Mr Hurst-Meyers and RHM Industries Pty Ltd (the applicants) in this proceeding. By that application the applicants sought a stay in relation to orders made by Elkaim J (the primary judge) on 30 March 2022 in this matter: Hoy v Hurst-Meyers (No 2) [2022] ACTSC 58. The orders relevantly included, inter alia, an order for “… judgment for the plaintiff against the defendants, jointly and severally, in the sum of $220,142.19”. I note that the applicants have filed a notice of appeal in relation to the orders of Elkaim J, with the appeal expected to be heard in April 2023.
2․Ultimately, I made orders in-chambers at 10.45am on 20 January 2023 granting the stay. These are my reasons for making those orders.
3․For convenience I shall refer to Mr Hurst-Meyers and RHM Industries Pty Ltd as the applicants throughout these reasons for judgment, and the plaintiff, Mr Hoy, as the respondent to the application.
4․The applicants were self-represented by Mr Hurst-Meyers at the hearing of the application. The applicants are similarly self-represented in their appeal. As I will come to, however, it appears that at least some legal assistance was obtained by the applicants in relation to this application.
5․The grounds of appeal in the applicants’ notice of appeal are not as clear as they may have been had they been prepared by a legal representative. However, as I previously observed in deciding a security for costs application in relation to the appeal, 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.

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Details

Case: [2023] ACTSC 6
Decision Date: 20 January 2023

CaseChat Overview and Summary

In the Federal Court of Australia, Hoy sought an urgent application to stay certain orders made by the primary judge in the proceedings against Hurst-Meyers. The dispute involves complex financial matters, with Hoy claiming that Hurst-Meyers' actions have caused significant financial loss. The urgency of the application stems from concurrent proceedings in two federal courts: a bankruptcy application and a winding-up application. The court was tasked with determining the appropriate test to apply for granting a stay and whether a refusal to stay would render the appeal nugatory.

The court considered the legal issues involved in deciding whether to grant the stay and, if so, what conditions should be attached. The primary consideration was whether denying the stay would make the appeal futile. The court noted that the appeal's success would be dependent on the outcome of the concurrent proceedings. It was imperative to ensure that the appeal did not become a hollow exercise if the other proceedings concluded adversely to Hoy. The court also had to balance the interests of both parties and the broader implications for the administration of justice.

The court concluded that the appeal would indeed be rendered nugatory if the stay was not granted, given the interdependencies of the concurrent proceedings. Therefore, the application to stay the primary judge's orders was granted. The court directed the parties to provide written submissions concerning the appropriate conditions to attach to the stay, ensuring that any conditions imposed would be fair and just to both parties while preserving the integrity of the appeal process.

The final orders, detailed in paragraph [59], included the grant of the stay and the directive for the parties to submit written submissions on the conditions for the stay. The court's decision aimed to ensure that the appeal process remained viable and that the interests of both parties were protected.

Orders

Orders of the court

See [59]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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