Morgan v Rankin (No 2)

[2008] NSWDC 183

CITATION:	Morgan v Rankin (No 2) [2008] NSWDC 183
HEARING DATE(S):	22 August 2008
EX TEMPORE JUDGMENT DATE:	22 August 2008
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1. The application is dismissed. 2. The affidavit filed in support of the application is returned. 3. The order for costs made on 14 August 2008 is confirmed. 4. The first and third defendants are to pay the plaintiffs’ costs of today’s application.
CATCHWORDS:	STAY - of orders pending appeal - refusal
PARTIES:	Scott Anthony Morgan (First Plaintiff) Annette Frances Morgan (Second Plaintiff) Phillip Norman Rankin (First Defendant) Gregg Morgan (Second Defendant) David Warne (Third Defendant) Darren Van Aardt (Fourth Defendant)
FILE NUMBER(S):	Newcastle 438/07
COUNSEL:	N M Coren (Plaintiffs) G Jensen (First and Third Defendants)
SOLICITORS:	Thomas Mitchell (Plaintiffs) NOT Lawyers (First and Third Defendants)

JUDGMENT

1 In this matter the first and third defendants against whom judgment was entered on 14 August 2008 have applied for a stay of the orders for payment to the plaintiffs made on that date.

2 Their application is based upon their concern that the plaintiffs may not be able to repay monies ordered to be paid to them if the appeal that they propose to bring is successful. As I pointed out in debate there is no evidence before me that the plaintiffs, if the appeal is lost, would not be able to repay the verdict monies.

3 The evidence before the court was that they were financially capable of raising $200,000 and subsequently $100,000 for the purpose of investment with the defendants’ company, that they are both employed and that they are long term residents in the Newcastle area.

4 There is a reference to irreparable prejudice to the defendants by reason of their current financial status. That is a matter that will have to be dealt with, it seems to me, through some financial advice or through other means. I am aware through the application made in this matter for expedition that the defendants may well be financially precarious and it seems to me that it is, on balance, more appropriate that the rights of the plaintiffs to their verdict be preserved than that the defendants be allowed a period of comfort within which to delay payment.

ORDERS

1 The application is dismissed.

2 The affidavit filed in support of the application is returned.

3 The order for costs made on 14 August 2008 is confirmed.

4 The first and third defendants are to pay the plaintiffs’ costs of today’s application.

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