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

1. 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.

2. It is unnecessary to detail the complete history of the matter, but it is a case with a lengthy and somewhat complicated history.

3. 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.

4. 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.

5. 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 with according to law. They also received an order that the builders/defendants pay a certain amount of costs. I am told from the bar table that those costs are in an amount in the vicinity of $50,000 although those costs have not been assessed.

6. Meanwhile, the defendants went through the process of having the costs, which remained in existence from the original orders of the Tribunal, assessed in the customary way. It is not presently relevant, but the approximate quantum of those costs was about $20,000.

7. In accordance with the appropriate procedures and rules, that costs order was registered as a judgment in the Local Court. It was that judgment which was the subject to the writ, and it was that writ which was the subject of the application to the learned magistrate for a stay.

8. The application for the stay of the writ was heard on 5 December 2014 and was refused. An affidavit by the plaintiffs' solicitor which was read on this application (and not subject to cross-examination or dispute) asserts that the Magistrate's reasons for refusing the stay application were extremely brief and failed to identify or deal with the arguments that had been made in the course of the application or to articulate any reason for rejecting those arguments. Regrettably, the transcript of what happened before the magistrate is not yet available. Precisely what arguments were made to the Magistrate is unclear but seem to have something to do with an equitable set off relating to the District Court costs order made in favour of the plaintiffs.

9. By summons filed in this Court on 10 December 2014, the plaintiff seeks to appeal against the refusal of the magistrate to order the stay of the writ. If necessary, it seeks leave to do so. There is some complication as to whether or not leave is required (see sections 39 and 40 of the Local Court Act (NSW) 2007.)

10. The substance of the appeal, which by necessity involves a point of law, is that the magistrate failed to give any or any adequate reasons for the decision. There is also a secondary allegation that the magistrate was led into error for reasons that are not currently relevant. In this application, which comes before me in the course of a fairly busy day in the duty list, it is unnecessary to consider closely the substance of the arguments that will be made on the hearing of the summons. As I have said, no transcript is available, so it is impossible to ascertain whether or not there is any real substance in the appeal.

11. It is difficult to envisage that the plaintiffs have any particular argument in a broader sense against paying a costs order which it itself is not subject to any appeal and which has been duly recorded as a judgment in the Local Court. As I understand it, there has been no application to set that judgment aside. However, whatever be the substance of its application to stay the writ, any appeal against the refusal of the magistrate to make that order would be rendered nugatory or otiose if, in the meantime, the sheriff was to execute the writ.

12. I am satisfied, in those circumstances, that it is appropriate to make the order sought seeking or staying the execution of the writ. There are many cases supporting the proposition that a stay may be appropriate where a refusal to order a stay would render an appeal futile: see for example, Wilson v Church (No 2)(1879) 12 Ch D 454; Re Middle Harbour Investments (in liq) (Court of Appeal (NSW), 15 December 1976, unrep) and De Gelder v Rodger (No 3) [2014] NSWSC 1851; referred in argument, Pollard.

13. I have considerable sympathy to the cogent argument made by Mr Lipp in resisting the application for the stay. However I am satisfied that a failure to grant the stay at this time has the potential to render the appeal against the Magistrate's refusal to stay the writ otiose. Mr Lipp, very fairly and properly, conceded that issue but attempted to mount arguments based more around the merits of the case, including the fact that it appears that the plaintiffs had consented to the orders for costs (Ex 1), the natural consequence of which was that the judgment debt was registered in the Local Court.

14. Mr Lipp placed reliance on the decision of Barrett J in Padkohe Pty Ltd v Fletcher [2006] NSWSC 1239. However, there are some distinguishing features in that case. For example, in Padkohe the party had not only consented to the costs order, but also agreed that the costs would be paid within 28 days.

15. In spite of the sympathy I have for the position of the defendants, I have ultimately come to the view that a failure to order the stay, at least until the appeal is next mentioned in this Court, has a potential, as I have said, to render the appeal nugatory.

16. Accordingly, I propose to make the orders sought by the plaintiff in its notice of motion, subject to a condition that they prosecute the appeal with due dispatch. Accordingly, I make these orders:

1. 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.

17. I make no order as to costs which are reserved.

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Decision last updated: 06 October 2015