Hurt and 6 Ors v Freeman
[2002] NSWSC 367
•29 April 2002
CITATION: Hurt & 6 Ors v Freeman [2002] NSWSC 367 CURRENT JURISDICTION: Equity FILE NUMBER(S): SC 4126/99 HEARING DATE(S): 29/04/02 JUDGMENT DATE: 29 April 2002 PARTIES :
Bruce Raymond Mostyn HURT
First Plaintiff/Respondent
Robert Charles Mostyn HURT
Second Plaintiff/Respondent
Sally Mostyn WHITE (nee Hurt)
Third Plaintiff/Respondent
Gina Mostyn SUTTON (nee Hurt)
Fourth Plaintiff/Respondent
Andrew Bruce Mostyn HURT
Fifth Plaintiff/Respondent
Eric Kenneth Mostyn HURT
Sixth Plaintiff/Respondent
Robert Thomas Mostyn HURT
Seventh Plaintiff/Respondent
Raymond Sydney FREEMAN
First Defendant/Applicant
JUDGMENT OF: Santow J
COUNSEL : J E Robson (Applicant/Defendant)
R A Dick (Respondents/Plaintiffs)SOLICITORS: Makinson & d'Apice (Applicant/Defendant)
Kanjian & Company (Respondents/Plaintiffs)CATCHWORDS: PROCEDURE - Stay of execution - Application by Defendant where Plaintiff has successfully obtained judgment at trial and Defendant seeks to fund his appeal from assets frozen pending the appeal and falling well short of the judgment - Relevant principles - short stay granted. CASES CITED: Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685
Re Middle Harbour Investments (in liq) (Court of Appeal, 15 December 1976, unreported)DECISION: Short stay granted.
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
SANTOW J
- Bruce Raymond Mostyn HURT
First Plaintiff/Respondent
Robert Charles Mostyn HURT
Second Plaintiff/Respondent
Sally Mostyn WHITE (nee Hurt)
Third Plaintiff/Respondent
Gina Mostyn SUTTON (nee Hurt)
Fourth Plaintiff/Respondent
Andrew Bruce Mostyn HURT
Fifth Plaintiff/Respondent
Eric Kenneth Mostyn HURT
Sixth Plaintiff/Respondent
Robert Thomas Mostyn HURT
Seventh Plaintiff/Respondent
Raymond Sydney FREEMAN
First Defendant/Applicant
JUDGMENT -
ex tempore
29 April 2002
1 In this matter I have earlier given judgment on 4 April 2002. When the matter came back before me to settle orders giving effect to that judgment for the first time, an application was only then made by the unsuccessful Defendant for a stay of those orders.
2 The Plaintiffs did not oppose a stay on execution of the orders until 29 April 2002, without admissions. This was in order that the matter might come back before me with any relevant affidavit evidence to determine whether or not any further stay should be granted.
3 The Defendant, on 22 April 2002, that is to say a week ago, filed a Notice of Motion seeking such stay but took until 26 April 2002, that is to say last Friday, prior to the matter coming back before me only on the following Monday, to serve affidavits. That of itself was hardly satisfactory.
4 Notwithstanding the shortness of time and the intervention of the weekend only, the Plaintiffs filed an affidavit in court today dated 29 April 2002. This the Defendant had the opportunity to consider only in Court. However, the Defendant was still in a position, as confirmed by counsel, to obtain instructions on it.
5 This is hardly the expedition which could reasonably be expected from the Defendant in light of my earlier orders.
6 Be that as it may, I have considered the application brought belatedly by the Defendant in light of the relevant principles, conveniently set out in Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685 at 693 and following. Those principles take a less stringent approach than in Re Middle Harbour Investments (In Liq) (Court of Appeal, 15 December 1976, unreported) quoted in Alexander (supra) at 694.
7 The present test is that “it is not necessary for the grant of a stay that special or exceptional circumstances should be made out. It is sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of discretion in his favour". (Alexander at 694).
8 The present case is, however, one where firstly the amount of the judgment that the Plaintiff has successfully obtained at trial is, with interest, $2,051,611. However the assets available to satisfy that judgment, according to the Defendant, is only approximately $1.36 million, a substantial shortfall. That property consists of real estate in Paddington and a National Income Plan Policy with National Australia Financial Management Limited, being estimated as worth respectively $675,000 approximately and $684,000 approximately.
9 Counsel for the applicant was not able to cite any case in which a stay was granted in such circumstances, that is where there was such a shortfall. Moreover this is a case where the Applicant/Defendant seeks to use the assets, hitherto frozen, as would be required to satisfy the judgment, though falling short of it, for not only funding the appeal but for ongoing living expenses. The latter are estimated at $6,000 per month. The Applicant was not able to cite any case where, in circumstances of such a shortfall, even an amount to fund an appeal (here estimated at $38,000) was allowed to be funded from assets frozen pending an appeal and falling well short of the judgment. I should note that the Applicant states (though this is not accepted by the Respondent) that he has no other assets to fund his living expenses and an appeal.
10 Essentially what the Applicant seeks is that the Respondents, being the successful Plaintiffs, should fund the appeal and living expenses from assets which, based on the judgment the Respondents/Plaintiffs have now secured, are assets belonging to it. Applying the test in Alexander, the Applicant has not demonstrated a reason or an appropriate case to warrant the exercise of discretion in his favour.
11 It must be clearly borne in mind that the Court is not here considering a Mareva injunction. Rather, it is a situation where the Plaintiffs have successfully obtained a judgment in their favour.
12 While the Applicant fell back upon an application simply for $38,000 to fund the appeal, as I see matters that has no greater justification than the more expansive application for living expenses as well.
13 In all the circumstances and in fairness to the Applicant, I have concluded that a very short stay on execution should be allowed so that the Applicant, upon its undertaking to proceed with all due expedition, should not be denied the opportunity to seek leave to appeal, and to appeal from the Court of Appeal in relation to my determination against the Applicant of the Applicant's Notice of Motion of 22 April 2002.
CONCLUSION
14 I make orders whereby a short stay of execution is provided to 14 May 2002, upon the conditions to which the Applicant has consented and upon the undertakings which the Applicant has given, as are set out immediately following the relevant orders.
15 I order that the costs of today be paid by the applicant in relation to the Notice of Motion.
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