Milevsky v Carson - [2005] NSWCA 265

NEW SOUTH WALES COURT OF APPEAL

CITATION: Milevsky v Carson [2005] NSWCA 265

FILE NUMBER(S):
40459 of 2005

HEARING DATE(S): 8 August 2005

JUDGMENT DATE: 08/08/2005

PARTIES:
Victor Milevsky (Claimant)
Pamela Brenda Carson (Opponent)

JUDGMENT OF: Handley JA

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): SC 2457 of 2002

LOWER COURT JUDICIAL OFFICER: Nicholas J

COUNSEL:
J Knox (Claimant)
P J Livingstone (Opponent)

SOLICITORS:
Brenton Banfield (Claimant)
Marsdens Law Group (Opponent)

CATCHWORDS:
STAY OF EXECUTION ON CONDITIONS

LEGISLATION CITED:
Property (Relationships) Act 1984

DECISION:
(1) The enforcement of order 3 made by Nicholas J on 13 May 2005, insofar as not already complied with, be stayed until the determination of the appeal or the further order of the Court.
(2) Notice of motion otherwise dismissed.
(3) Costs of the motion to be costs in the appeal.
(4) Order 1 is made upon the claimant's solicitor, Brenton Craig Banfield, undertaking to the Court that he will continue to hold in safe custody certificate of title, folio identifier 2/2857479, relating to the Macquarie Links property, and discharge of mortgage 5077613.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40459 of 2005
HANDLEY JA
8 AUGUST 2005

VICTOR MILEVSKY v PAMELA BRENDA CARSON

Judgment

HANDLEY JA: The claimant has appealed from a decision of Nicholas J in a de facto relationships case. His Honour ordered the claimant, who was the plaintiff below, to transfer his undivided half interest in a jointly owned property at Macquarie Links to the defendant. The claimant challenges this order as being excessive in the circumstances, and in his notice of appeal submits that in lieu he should be ordered to pay the opponent the sum of $400,000, and she should transfer to him her right, title and interest in the property at Macquarie Links.
The Judge’s orders included, as part of order 3, an order that the mortgage over the Macquarie Links property be discharged by the plaintiff. This has been done.
When the matter was last before me I became concerned, on the basis of information from counsel for the claimant, that he may have remortgaged the Macquarie Links property to the St George Bank. This matter has now been clarified by affidavits filed pursuant to directions I then gave, and it is clear that the certificate of title is held by the solicitor for the claimant for safe custody.
The claimant sought a stay of orders 3, 4 and 9 made by Nicholas J. The claim to a stay for order 4 is not pressed in view of subsequent events. Claim 9 is an order for the plaintiff to pay the defendant’s costs. It is not the practice of the Court to stay such orders to prevent the successful party having his or her or its costs assessed. The question of stay is considered, if at all, when the successful party seeks to enforce an order for costs having a certificate of assessment which takes…

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.

Continue reading Milevsky v Carson

Details

AGLC: Milevsky v Carson [2005] NSWCA 265
Case: [2005] NSWCA 265
Decision Date: 8 August 2005

CaseChat Overview and Summary

The claimant, Milevsky, sought a stay of execution of an order made by Nicholas J on 13 May 2005, pending the determination of an appeal. The respondent was Carson.

The primary legal issue before the Court was whether to grant a stay of execution of the primary judge's order. This involved considering the principles governing applications for a stay of execution, particularly in the context of an impending appeal.

The Court reasoned that a stay of execution should be granted where it is necessary to preserve the subject matter of the appeal and to prevent the appeal from becoming nugatory. In this instance, the Court was satisfied that a stay was warranted to ensure that the appeal could be effectively heard and determined. The stay was made conditional upon the claimant's solicitor undertaking to continue to hold in safe custody the certificate of title and discharge of mortgage relating to the Macquarie Links property.

The Court ordered that the enforcement of the primary judge's order, insofar as not already complied with, be stayed until the determination of the appeal or further order. The notice of motion was otherwise dismissed, with costs of the motion to be costs in the appeal.

Orders

Orders of the court

(1) The enforcement of order 3 made by Nicholas J on 13 May 2005, insofar as not already complied with, be stayed until the determination of the appeal or the further order of the Court.

(2) Notice of motion otherwise dismissed.

(3) Costs of the motion to be costs in the appeal.

(4) Order 1 is made upon the claimant's solicitor, Brenton Craig Banfield, undertaking to the Court that he will continue to hold in safe custody certificate of title, folio identifier 2/2857479, relating to the Macquarie Links property, and discharge of mortgage 5077613.

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

Full text does not contain this section.