Misan v Markham Real Estate Partners (KSW) Pty Ltd (No 2)

The New South Wales Court of Appeal considered an application by the appellant, Misan, for a stay of execution pending an appeal. The respondent, Markham Real Estate Partners (KSW) Pty Ltd, had issued a subpoena and a notice to produce documents in opposition to the stay application. The dispute centred on the relevance and appropriateness of the documents sought by the respondent.

The primary legal issue before the Court was whether the subpoena and notice to produce, which sought documents relating to the appellant's financial position and the estimated costs of the appeal, were relevant to the determination of the stay application. A secondary issue arose concerning the appropriate basis for ordering costs against the respondent.

Leeming JA determined that the documents sought by the respondent were not relevant to the question of whether a stay of execution should be granted. The Court reasoned that the financial position of the appellant's partner and the precise costs of the appeal were not material considerations for the grant of a stay. Consequently, the Court set aside paragraphs of the notice to produce and parts of the subpoena. Furthermore, the Court ordered that the respondent pay the appellant's costs of the relevant notices of motion on an indemnity basis, finding that the respondent's opposition to the stay application on terms was unfounded and that its broader commercial interests were irrelevant to the costs order.