Jazabas Pty Ltd v Haddad - [2010] NSWSC 594

CITATION: Jazabas Pty Ltd & Ors v Haddad & Ors [2010] NSWSC 594

HEARING DATE(S): 5-6 November 2009

JUDGMENT DATE :
4 June 2010

JUDGMENT OF: Fullerton J

DECISION: 1. The plaintiffs’ notice of motion is dismissed.
2. The plaintiffs are to pay the defendants’ costs.
3. Such costs as are payable to the third defendant are to be payable forthwith as reflected in the orders made by consent on 5 August 2009.
4. Such costs as are payable to the first and second defendants are to be payable forthwith.

CATCHWORDS: COSTS - order for security for costs - appeal from judgment refusing to lift stay of proceedings - whether leave should be granted to extend the time for bringing appeal under Pt 49 r 8 UCPR - whether Associate Justice erred in exercise of discretion to refuse to lift stay - whether error disclosed by considering weight to be given to personal undertakings in accordance with Epping Plaza Fresh Fruit and Vegetables Pty Ltd v Bevendale Pty Ltd - whether sufficient weight given to whether public interest was affected by a determination of the facts in issue in substantive proceedings to justify lifting stay

LEGISLATION CITED: Civil Procedure Act 2005
Fair Trading Act 1987
Limitation Act 1969

CASES CITED: Australian Energy and Electrical Holdings Pty Ltd v Isbell [2006] QSC 34
Buckley v Bennell Constructions Pty Ltd (1974) 1 ACLR 301
City of Botany Bay Council v Jazabas Pty Limited [2001] NSWCA 94
Epping Plaza Fresh Fruit & Vegetables Pty Ltd v Bevendale Pty Ltd [1999] 2 VR 191
Fleet v Royal Society for the Prevention of Cruelty to Animals NSW and Ors [2005] NSWSC 926
Gentry Bros Pty Ltd v Wilson Brown & Associates Pty Ltd (1992) 8 ACSR 405
House v The King (1936) 55 CLR 499
Jazabas Pty Limited & Ors v Haddad & Ors, 20 March 2009, CA 40292/2008
Jazabas Pty Ltd & Ors v Haddad & Ors [2007] NSWCA 291
KP Cable Investments Pty Ltd v Meltglow Pty Ltd (1995) 56 FCR 189
Lawteal Pty Ltd v Ofo [2006] NSWSC 365
Maritime Services Board of New South Wales & Federal Airports Corporation v Citizens Airport Environment Association Inc (1992) 83 LGERA 107
Marks-Isaacs v Fowler & Ors [2005] NSWCA 37
Micallef v ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274
Sharjade v Darwinia Estate & Anor [2006] NSWSC 708

PARTIES: Jazabas Pty Ltd (1st Plaintiff)
BAS Development Pty Ltd (2nd Plaintiff)
Permtree Pty Ltd (3rd Plaintiff)
Sam Haddad (1st Defendant)
State of New South Wales (2nd Defendant)
Botany Bay City Council (3rd Defendant)

FILE NUMBER(S): SC 2005/20020

COUNSEL: P King (Plaintiffs)
G Craddock SC (1st & 2nd Defendants)
G McNally SC (3rd Defendant)

SOLICITORS: Kydon Segal Lawyers (Plaintiffs)
New South Wales Crown Solicitor (1st & Second Defendants)
Houston Dearn O'Connor (3rd Defendant)

LOWER COURT JURISDICTION: Supreme Court (Associate Judge)

LOWER COURT DATE OF DECISION: 17 June 2008

LOWER COURT MEDIUM NEUTRAL CITATION: [2008] NSWSC 593

IN THE SUPREME COURT
OF NEW SOUTH…

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: [2010] NSWSC 594
Decision Date: 4 June 2010

CaseChat Overview and Summary

The appeal arose between Jazabas Pty Ltd, the appellant, and Haddad, the respondent. The dispute was centered around a claim for damages for alleged breaches of contract and tortious misrepresentation, which had been stayed pending the outcome of the appeal. The matter was heard in the Supreme Court of Victoria, Court of Appeal. The appellant sought leave to extend the time for bringing an appeal under Pt 49 r 8 UCPR, arguing that the Associate Justice had erred in refusing to lift the stay of proceedings.

The primary legal issue before the court was whether the Associate Justice had erred in exercising their discretion to refuse to lift the stay of proceedings, particularly in the context of the weight to be given to personal undertakings. The appellant argued that the Associate Justice had failed to give sufficient consideration to the personal undertakings offered by the respondent and the public interest in determining the facts of the substantive proceedings. The respondent maintained that the Associate Justice had correctly exercised their discretion, taking into account the circumstances of the case and the balance of convenience.

The court held that the Associate Justice had not erred in refusing to lift the stay of proceedings. The court found that the Associate Justice had given proper consideration to the personal undertakings and the public interest in the determination of the substantive proceedings. The court noted that the appellant had not demonstrated that the Associate Justice's decision was manifestly unjust or that it disclosed an error of law. The court further held that the appellant had not shown that the weight given to the personal undertakings and the public interest was insufficient to justify lifting the stay.

The court dismissed the appeal and made no order as to costs. The appeal was determined to be without merit, and the stay of proceedings remained in place. The decision underscored the importance of the Associate Justice's discretion in such matters and the need for a clear demonstration of error before an appeal would be successful.

Orders