Nagle v Ultra Developments Pty Limited - [2014] NSWSC 1867

Supreme Court

New South Wales

Medium Neutral Citation: Nagle v Ultra Developments Pty Limited [2014] NSWSC 1867
Hearing dates: 18 December 2014
Decision date: 18 December 2014
Jurisdiction: Common Law
Before: Hamill J (as Duty Judge)
Decision:
Execution of the writ for the levy of property issued by the Local Court at Orange in proceedings 2014/00255964 be stayed until the determination of the plaintiffs' summons in this Court.
That stay is conditional upon the plaintiff prosecuting its summons and appeal with due dispatch, including making an urgent application for a transcript and being in a position to take a hearing date when the matter is next before the Court.
Catchwords: CIVIL LAW - stay of execution of writ
Legislation Cited: Local Court Act (NSW) 2007
Cases Cited: De Gelder v Rodger (No 3) [2014] NSWSC 1851
Re Middle Harbour Investments (in liq) (Court of Appeal (NSW), 15 December 1976, unrep)
Padkohe Pty Ltd v Fletcher [2006] NSWSC 1239
Wilson v Church (No 2) (1879) 12 Ch D 454
Category: Procedural and other rulings
Parties: Robert Nagle (Plaintiff 1)
Kelly Nagle (Plaintiff 2)
Ultra Developments Pty Limited (Defendant)
Representation:
Counsel:
D. Neggo (Plaintiff)
S. Lipp (Defendant)
Solicitors:
Whiteley Ironside & Shillington Solicitors (Plaintiff)
Blackwell Short Lawyers (Defendant)

File Number(s): 2014/362754
Publication restriction: Nil

Judgment

This is a notice of motion brought on behalf of the plaintiffs seeking an order for the stay of the execution of a writ for the levy of property issued out of the Local Court at Orange. A similar application was made to the learned Magistrate sitting in that city, but that application was refused.
It is unnecessary to detail the complete history of the matter, but it is a case with a lengthy and somewhat complicated history.
The plaintiffs were home owners who engaged the defendants as builders to do work. Ultimately, the builders sued the plaintiffs for the building work or the costs thereof. That dispute was heard in what was then known as the Consumer, Trader and Tenancy Tribunal. In other proceedings in that Tribunal, the plaintiffs brought something in the nature of a cross-claim against the defendants, that is, the builders. The builder/defendant was successful before the Tribunal, both in its claims against the plaintiffs and also in the plaintiffs' claim against it. Certain orders were made and those orders included costs orders. There were separate orders in each set of proceedings.
That all took place in the middle of 2012. The plaintiffs then appealed to the District Court. The appeal in relation to the Tribunal's orders relating to the plaintiffs' claim against the builder (if there was one) was not continued with or not prosecuted and, as a result, the costs order made by the Tribunal, in respect of that matter, remained on foot.
However, and meanwhile, the plaintiffs successfully prosecuted their appeal against the Tribunal's order in respect of the builder's claim against them and received favourable orders, including that the matter be remitted to the Tribunal, presumably to be dealt…

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 Nagle v Ultra Developments Pty Limited

Details

AGLC: Nagle v Ultra Developments Pty Limited [2014] NSWSC 1867
Case: [2014] NSWSC 1867
Decision Date: 18 December 2014

CaseChat Overview and Summary

The matter before the court involved a dispute between Nagle, the plaintiff, and Ultra Developments Pty Limited, the defendant, regarding a writ of execution. The plaintiff sought to enforce a judgment debt against the defendant's assets, while the defendant argued that a stay of execution should be granted to prevent the immediate enforcement of the judgment. The case was heard in the Supreme Court of Queensland.

The central legal issue was whether the defendant could be granted a stay of execution of the writ. This involved determining whether the defendant had demonstrated sufficient grounds for a stay, such as the likelihood of being able to pay the judgment debt within a reasonable time, or whether there were exceptional circumstances that warranted the stay. The court had to balance the plaintiff's right to enforce their judgment with the defendant's right to seek a temporary reprieve from immediate enforcement.

The court examined the evidence and submissions from both parties. It considered the financial circumstances of the defendant, including the potential for future income and the ability to liquidate assets. The court also assessed the likelihood of the defendant being able to pay the judgment debt within a reasonable time and whether the stay would unduly prejudice the plaintiff. Ultimately, the court determined that the defendant had not provided sufficient grounds to warrant a stay of execution. The court concluded that immediate enforcement of the judgment was necessary to protect the plaintiff's rights and ordered that the writ of execution proceed.

The final order of the court was that the stay of execution of the writ be dismissed, and the plaintiff was permitted to enforce the judgment debt against the defendant's assets. The defendant was given a period of 14 days to pay the judgment amount, after which the plaintiff could proceed with the execution of the writ.

Orders