Marlinspike Debt Acquisitions Pty Ltd v The Undone Pty Ltd (No. 3)

[2018] NSWSC 132

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Marlinspike Debt Acquisitions Pty Ltd v The Undone Pty Ltd (No. 3) [2018] NSWSC 132
Hearing dates:	16 February 2018
Date of orders:	16 February 2018
Decision date:	16 February 2018
Jurisdiction:	Common Law
Before:	Davies J
Decision:	1. Stay execution of orders (3), (4) and (5) made by Davies J on 9 February 2018 until 9 March 2018 on the condition that a summons for leave to appeal and supporting documents to be filed and served by Mr Sayer-Jones by no later than 9 March 2018.
Catchwords:	JUDGMENTS – stay of execution pending appeal
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Marlinspike Debt Acquisitions Pty Ltd v The Undone Pty Ltd (No. 2) [2018] NSWSC 72 Tanamerah Estates Pty Ltd as the trustee for Alexander Superannuation Fund v Tibra Capital Pty Ltd [2013] NSWCA 266
Category:	Procedural rulings
Parties:	Marlinspike Debt Acquisitions Pty Ltd (Plaintiff) The Undone Pty Ltd (First Defendant) RJC Carriage 2 Pty Ltd (Second Defendant) Georgia Maree Martin (Third Defendant) Richard James Crampton (Fourth Defendant) Sara Donaldson (Fifth Defendant)
Representation:	Counsel: Robert Sayer-Jones (in his personal capacity) C Tam (Defendants) Solicitors: Self-represented (Plaintiff) Resolve Litigation Lawyers Pty Ltd (Defendants)
File Number(s):	2017/383564
Publication restriction:	Nil

Judgment

1. In this matter, I gave judgment on the 9 February 2018 on an application by the defendants for gross sum costs orders in lieu of the ordinary costs orders that I had made in my earlier judgment: Marlinspike Debt Acquisitions Pty Ltd v The Undone Pty Ltd (No. 2) [2018] NSWSC 72.

2. The result of that judgment was that I varied the orders in my earlier judgment by ordering three separate gross sum amounts to be paid by Mr Sayer-Jones pursuant to an undertaking that he gave when the substantive proceedings were heard in early January. Mr Sayer-Jones was given a stay of seven days on the day I delivered that judgment. He now seeks a further stay in order to appeal against my judgment.

3. Rule 51.10 Uniform Civil Procedure Rules 2005 (NSW) provides that a summons seeking leave to appeal must be filed within 28 days after the material date.

4. Mr Sayer-Jones has not yet prepared a notice of appeal. However, he has indicated that he seeks leave to appeal on one ground only, namely, that the Court of Appeal's decision of Tanamerah Estates Pty Ltd as the trustee for Alexander Superannuation Fund v Tibra Capital Pty Ltd [2013] NSWCA 266 upon which I relied in my first judgment was wrongly decided.

5. Mr Sayer-Jones will need leave to appeal because my judgment on 9 February 2018 was an interlocutory judgment and, possibly, because it was a judgment with respect to the taxation or assessment of costs. He may well need leave to seek to argue in any event that the Court of Appeal should reconsider what is a fairly recent judgment of the court.

6. Given that the rules provide a period of 28 days for the filing of a summons, I consider it appropriate that Mr Sayer-Jones should be given the ordinary period of time to prepare any documents necessary for that appeal. The defendants are naturally anxious to have their costs paid as soon as possible and have proposed that it should be a condition of any stay that Mr Sayer-Jones pay the amount of the costs into court.

7. In the light of what I have been told by Mr Sayer-Jones, both from the bar table and in an affidavit, he does not have any funds to pay those costs at the present time nor any means of obtaining them. This is despite his having given me an undertaking at the outset of substantive proceedings that he would pay any costs ordered against the plaintiff because the plaintiff was a company seeking leave to appear through a director in circumstances, where contrary to rule 7.1(3) UCPR, the director was not himself bringing a claim against the defendants.

8. It does not seem realistic in those circumstances to make it a condition of any stay that those costs be paid into court because the effect would really be to refuse the stay.

9. Accordingly orders (3), (4) and (5) in my judgment of 9 February are stayed until 9 March 2018 on condition that a summons for leave to appeal and any supporting documents are filed and served by that date.

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Amendments

08 April 2025 - Publication restriction lifted