Mills v Futhem Pty Ltd

Court of Appeal

New South Wales

Case Title:

Mills v Futhem Pty Ltd

Medium Neutral Citation:

[2011] NSWCA 166

Hearing Date(s):

20 June 2011

Decision Date:

20 June 2011

Jurisdiction:

Before:

Campbell JA

Decision:

(1) Upon the Applicant, by her counsel, giving to the Court an undertaking that she will not dispose of or encumber her assets other than in the ordinary course of business pending the determination of the appeal or further order, and that she will act to bring the proceedings on with expedition, I order that any judgment in the District Court in matter number 39/07 in the General List Penrith Registry be stayed pending the determination of the present application for leave to appeal, or further order.
(2) I direct the Applicant to file and serve a draft White Book by 4pm Friday, 8 July 2011.
(3) I order that the costs of today's application be costs in the cause.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PRACTICE AND PROCEDURE - judgments and orders - construction of order - effect of alleged contravention of UCPR - consent order in terms that restrict, or purport to restrict any disclosure of the terms of the judgment or order

PRACTICE AND PROCEDURE - stay of proceedings - applicant has onus of putting forward a basis on which the stay can be granted that is fair to both parties

Legislation Cited:

Civil Procedure Act 2005

Cases Cited:

Athens v Randwick City Council (2005) 64 NSWLR 58
Kirkpatrick v Kotis (2004) NSWLR 567

Texts Cited:

Category:

Interlocutory applications

Parties:

Jay Lynette Mills (Applicant)
Futhem Pty Limited (Respondent)

Representation

- Counsel:

Counsel
CR de Robillard (Applicant)
G King, solicitor (Respondent)

- Solicitors:

Solicitors
Kent Attorneys (Applicant)
King Legal, (Respondent)

File number(s):

2011/178503

Decision Under Appeal

- Court / Tribunal:

District Court

- Before:

Truss DCJ

- Date of Decision:

26 May 2011

- Citation:

- Court File Number(s)

2007/296556

Publication Restriction:

Judgment - Ex tempore

1. This is an application for a stay of judgment that has been granted in the District Court. It arises in some unusual circumstances. The Respondent was the landlord of some commercial premises of which the Applicant was the tenant. The Respondent brought some proceedings in the District Court contending that there had been a failure to pay rent. Those proceedings were settled on the terms of some Terms of Settlement that the parties executed on 25 November 2008. Those Terms of Settlement were in the form of Form 33 version 2 under UCPR . The Terms of Settlement had, as their operative part:

"BY CONSENT AND WITHOUT ADMISSIONS

1. Verdict and Judgment for the Plaintiff…