Kation Pty Ltd v Lamru Pty Ltd; Lewis v Nortex Pty Ltd (In liq) (No 3)

In this matter before Basten JA of the Court of Appeal of New South Wales, Kation Pty Ltd and Mr Lewis sought a stay of enforcement of certain orders made by the Court on 12 June 2009 and 21 December 2009. The respondents were Lamru Pty Ltd and the liquidator of Nortex Pty Ltd. The applicants sought this stay pending the determination of a proposed application for special leave to appeal to the High Court.

The primary legal issue before the Court was whether the prospects of success of the proposed special leave application warranted the granting of a stay of enforcement of the judgment debts. This involved considering the relevance of other proceedings in which the judgment debtor in the current proceedings was the judgment creditor, and the extent to which the outcome of those other proceedings might impact the assessment of the balance of convenience. The Court also considered the prejudice that might result from granting the stay, particularly in light of an undertaking not to dispose of assets.

Basten JA granted the stay of enforcement of payment of amounts due to Lamru Pty Ltd or the liquidator of Nortex Pty Ltd. This decision was made on the condition of an undertaking by Mr Lewis, in terms set out in a handwritten document and further undertakings given through counsel in court, including an undertaking not to seek to lift a stay presently enforced in respect of the registration of a New Zealand judgment. The Court also ordered that the notice of motion filed by the applicants on 21 December 2009 be otherwise dismissed, with liberty to apply in respect of the stay on three days' notice, and made no order as to the costs of the motion.