Hoy v Hurst-Meyers (No 4)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Hoy v Hurst-Meyers (No 4)

Citation:

[2023] ACTSC 17

Hearing Date:

19 January 2023, 3 February 2023

DecisionDate:

3 February 2023

Reasons Date:

6 February 2023

Before:

Loukas-Karlsson J

Decision:

See [52]

Catchwords:

CIVIL HEARING – JURISDICTION, PRACTICE AND PROCEDURE – conditions to attach to stay – consideration of state of evidence before the Court – consideration of need for conditions in light of impending sale of Queanbeyan property – balance of convenience – least onerous conditions – conditions generally in form sought by plaintiff made – leave granted for the defendants to seek to vary conditions on provision of admissible evidence

Legislation Cited:

Jurisdiction of Courts (Cross-Vesting) Act 1987 (ACT)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW)
Jurisdiction of Courts (Cross-Vesting) Act 1987 (SA)

Cases Cited:

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

SC 383 of 2019

LOUKAS-KARLSSON J:

Introduction

1․On 20 January 2023, following an urgent hearing before me on 19 January 2023, I made orders staying the orders of Elkaim J made on 30 March 2019 in the substantive proceeding. The reasons for the granting of the stay are explained in my earlier judgment: Hoy v Hurst-Meyers (No 3) [2023] ACTSC 6 (Stay Reasons).

2․That judgment referred to the defendants as the applicants and the plaintiff as the respondent to the application. These reasons will adopt the same course for convenience. These reasons should be read in conjunction with the Stay Reasons and do not repeat various background matters.

3․As I outlined in the Stay Reasons, the granting of the stay would be subject to condition(s) to ensure that the respondent did not suffer prejudice as a result of the stay. In particular, I referred to the case of McLean Tecnic v Digi-Tech; Kalifair v Digi-Tech [2002] NSWCA 383; 55 NSWLR 737 at [28] where the Court stated:

A successful party is prima facie entitled to the fruits of his judgment. He is entitled to be protected, as far as practicable, from the risk that if the appeal fails assets which earlier were available to satisfy the judgment will no longer be available for that purpose. The Court will endeavour to see that a stay does not cause that kind of prejudice to a judgment creditor. An appellant may be required to provide appropriate security as the price of a stay which may make the judgment creditor a secured creditor. Otherwise a requirement for security is only intended to protect the status quo, that is the existing value of the judgment and not to improve the position of the judgment creditor by increasing that value.

4․Similar remarks apply to this case. The respondent is entitled, as…