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Kalifair Pty Ltd v Digi-Tech (Australia) Ltd

Kalifair Pty Ltd v Digi-Tech (Australia) Ltd

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Case Copied 6 December 2002 18 min read

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Reported Decision:
(2002) 55 NSWLR 737

New South Wales

Court of Appeal

CITATION: McLean Tecnic v Digi-Tech; Kalifair v Digi-Tech [2002] NSWCA 383

FILE NUMBER(S): CA 40840/02; 40838/02

HEARING DATE(S): 11 November 2002

JUDGMENT DATE:
6 December 2002

PARTIES :

McLean Tecnic Pty Limited & Anor v Digi-Tech (Australia) Limited & Ors
Kalifair Pty Ltd & Ors v Digi-Tech (Australia) Limited & Ors

JUDGMENT OF: Handley JA at 1; Sheller JA at 1; Ipp JA at 1

LOWER COURT JURISDICTION : Supreme Court

LOWER COURT
FILE NUMBER(S) : ED 50169/99; 50087/00

LOWER COURT
JUDICIAL OFFICER : Meagher JA

COUNSEL: Claimants - A J Sullivan QC/ HWD Stowe
Opponents - M S Christie

SOLICITORS: Claimants - Atanaskovic Hartnell
Opponents - Blake Dawson Waldron

CATCHWORDS: PROCEDURE - appeal - stay - prejudice

LEGISLATION CITED: Supreme Court Act 1970 (NSW)

CASES CITED:
Sali v SPC (1993) 67 ALJR 515
Wentworth v Wentworth (1994) 35 NSWLR 726
House v The King (1936) 55 CLR 499
Re Will of Gilbert (1946) 46 SR (NSW) 318
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Moulieux Pty Ltd v Girvan NSW Pty Ltd (1991) 13 Leg Rep 24
Advanced Building Systems Pty Ltd v Ramset Fasteners (Aust) Pty Ltd (1997) 71 ALJR 814
Federal Commissioner of Taxation v Myer Emporium Ltd [No 1] (1986) 160 CLR 220
Bone v Commissioner of Stamp Duties [1972] 2 NSWLR 651; (1974) 132 CLR 38; [1977] AC 511
Rodger v Comptoir d'Escompte de Paris (1871) 3 LR PC 465
TCN Channel 9 Pty Ltd v Antoniadis [No 2] (1999) 48 NSWLR 381

DECISION: Appeals allowed with costs. Orders made

40838/02
ED 50169/99
40840/02
ED 50169/99
ED 50087/00

HANDLEY JA
SHELLER JA
IPP JA

6 December 2002

KALIFAIR PTY LTD & ANOR v DIGI-TECH (AUSTRALIA) LIMITED & ORS

McLEAN TECNIC PTY LTD & ORS v DIGI-TECH (AUSTRALIA) LIMITED & ORS

PROCEDURE - appeal - stay - prejudice

Judgments for substantial sums were entered against the appellants following a trial. A single Judge of the Court of Appeal dismissed the appellants’ motions for a stay. The appellants appealed to a Full Court.

The appellants submitted that the single Judge should not have followed the decision of Brennan J in Sali v SPC Ltd (1993) 67 ALJR 515 and should have followed the decision of this Court in Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685. The respondent judgment creditor contended that as a condition of any stay the persons interested in the appellant companies should be required to provide security for the judgment debts.

HELD, allowing the appeal: The primary Judge erred in principle in following Sali v SPC (1993) 67 ALJR 515. A stay of execution may be granted where there is a substantial question to be determined on the appeal. In exercising its discretion the Court will be guided by the balance of convenience and the competing rights of the parties. Where there is a risk that if a stay is not…

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: [2002] NSWCA 383
Decision Date: 6 December 2002

CaseChat Overview and Summary

The parties to this appeal were Kalifair Pty Ltd (the appellant) and Digi-Tech (Australia) Ltd (the respondent). The dispute concerned an application for a stay of execution of a judgment obtained by Digi-Tech against Kalifair. The appeal was heard in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the primary judge erred in refusing to grant a stay of execution of the judgment pending the determination of a separate, but related, proceeding. The court was required to consider whether the refusal of the stay would cause prejudice to Kalifair and whether the appeal against that refusal had sufficient merit to warrant intervention.

The Court of Appeal allowed the appeal, finding that the primary judge had erred in refusing the stay. The court reasoned that the refusal of the stay would cause significant prejudice to Kalifair, particularly in light of the potential for the separate proceeding to impact the enforceability of the judgment. The principles applied related to the court's discretion to grant a stay of execution and the need to prevent injustice where a party faces substantial prejudice.

The appeals were allowed with costs, and orders were made by the court.

Orders

Orders of the court

Appeals allowed with costs. Orders made

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	McLean Tecnic v Digi-Tech; Kalifair v Digi-Tech [2002] NSWCA 383
FILE NUMBER(S):	CA 40840/02; 40838/02
HEARING DATE(S):	11 November 2002
JUDGMENT DATE:	6 December 2002
PARTIES :	McLean Tecnic Pty Limited & Anor v Digi-Tech (Australia) Limited & Ors Kalifair Pty Ltd & Ors v Digi-Tech (Australia) Limited & Ors
JUDGMENT OF:	Handley JA at 1; Sheller JA at 1; Ipp JA at 1

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	ED 50169/99; 50087/00
LOWER COURT JUDICIAL OFFICER :	Meagher JA

COUNSEL:	Claimants - A J Sullivan QC/ HWD Stowe Opponents - M S Christie
SOLICITORS:	Claimants - Atanaskovic Hartnell Opponents - Blake Dawson Waldron
CATCHWORDS:	PROCEDURE - appeal - stay - prejudice
LEGISLATION CITED:	Supreme Court Act 1970 (NSW)
CASES CITED:	Sali v SPC (1993) 67 ALJR 515 Wentworth v Wentworth (1994) 35 NSWLR 726 House v The King (1936) 55 CLR 499 Re Will of Gilbert (1946) 46 SR (NSW) 318 Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Moulieux Pty Ltd v Girvan NSW Pty Ltd (1991) 13 Leg Rep 24 Advanced Building Systems Pty Ltd v Ramset Fasteners (Aust) Pty Ltd (1997) 71 ALJR 814 Federal Commissioner of Taxation v Myer Emporium Ltd [No 1] (1986) 160 CLR 220 Bone v Commissioner of Stamp Duties [1972] 2 NSWLR 651; (1974) 132 CLR 38; [1977] AC 511 Rodger v Comptoir d'Escompte de Paris (1871) 3 LR PC 465 TCN Channel 9 Pty Ltd v Antoniadis [No 2] (1999) 48 NSWLR 381
DECISION:	Appeals allowed with costs. Orders made