Nicol v PGLE Pty Ltd - [2006] FCA 1826

FEDERAL COURT OF AUSTRALIA
Nicol v PGLE Pty Ltd [2006] FCA 1826
PRACTICE AND PROCEDURE – application for stay of order pending appeal – grounds of appeal not arguable – application dismissed.
Jennings Construction Limited v Burgundy Royale Investments Pty Limited (1986) 69 ALR 265 cited
COLIN MCINTOSH NICOL & SAMUEL CHARLES DAVIES AS JOINT & SEVERAL RECEIVERS & MANAGERS OF THE PROPERTY OF GUISEPPE ANTONIO MERCORELLA & THE SCHEME & AS JOINT & SEVERAL LIQUIDATORS OF THE SCHEME v PGLE PTY LTD, KYTARA PTY LTD, MERBEL PTY LTD, MERCORELLA (PIRIE STREET) PTY LTD, SANCAT PTY LTD, T & G MERCORELLA PTY LTD, MZF PTY LTD, OPEY PTY LTD, UNLEY FINANCIAL STRATEGIES PTY LTD, WOL PROPERTIES PTY LTD, PACIFIC PLACE HOLDINGS PTY LTD, TULLOCH LODGE LIMITED, TULLOCH LODGE SYNDICATIONS PTY LTD, ZMMF PTY LTD, ZAPAC PTY LTD, GUISEPPE ANTONIO MERCORELLA, RAINWAY PTY LTD, SALISBURY MAUSOLEUM PTY LTD AND SALISBURY MAUSOLEUM DEVELOPMENT PTY LTD
SAD 185 OF 2005
LANDER J
15 DECEMBER 2006
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 185 OF 2005

BETWEEN:

COLIN MCINTOSH NICOL & SAMUEL CHARLES DAVIES AS JOINT & SEVERAL RECEIVERS & MANAGERS OF THE PROPERTY OF GUISEPPE ANTONIO MERCORELLA & THE SCHEME & AS JOINT & SEVERAL LIQUIDATORS OF THE SCHEME
Applicant

AND:

PGLE PTY LTD
First Respondent

KYTARA PTY LTD
Second Respondent

MERBEL PTY LTD
Third Respondent

MERCORELLA (PIRIE STREET) PTY LTD
Fourth Respondent

SANCAT PTY LTD
Fifth Respondent

T & G MERCORELLA PTY LTD
Sixth Respondent

MZF PTY LTD
Seventh Respondent

OPEY PTY LTD
Eighth Respondent

UNLEY FINANCIAL STRATEGIES PTY LTD
Ninth Respondent

WOL PROPERTIES PTY LTD
Tenth Respondent

PACIFIC PLACE HOLDINGS PTY LTD
Eleventh Respondent

TULLOCH LODGE LIMITED
Twelfth Respondent

TULLOCH LODGE SYNDICATIONS PTY LTD
Thirteenth Respondent

ZMMF PTY LTD
Fourteenth Respondent

ZAPAC PTY LTD
Fifteenth Respondent

GUISEPPE ANTONIO MERCORELLA
Sixteenth Respondent

RAINWAY PTY LTD
Seventeeth Respondent

SALISBURY MAUSOLEUM PTY LTD
Eighteenth Respondent

SALISBURY MAUSOLEUM DEVELOPMENT PTY LTD
Nineteenth Respondent

JUDGE:

LANDER J

DATE OF ORDER:

15 DECEMBER 2006

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.The application for a stay be dismissed.
2.The applicant on the notice of motion pay the respondent to the notice of motion’s costs.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 185 OF 2005

BETWEEN:

COLIN MCINTOSH NICOL & SAMUEL CHARLES DAVIES AS JOINT & SEVERAL RECEIVERS & MANAGERS OF THE PROPERTY OF GUISEPPE ANTONIO MERCORELLA & THE SCHEME & AS JOINT & SEVERAL LIQUIDATORS OF THE SCHEME
Applicant

AND:

PGLE PTY LTD
First Respondent

KYTARA PTY LTD
Second Respondent

MERBEL PTY LTD
Third Respondent

MERCORELLA (PIRIE STREET) PTY LTD
Fourth Respondent

SANCAT PTY LTD
Fifth Respondent

T & G MERCORELLA PTY LTD
Sixth Respondent

MZF PTY LTD
Seventh Respondent

OPEY PTY LTD
Eighth Respondent

UNLEY FINANCIAL STRATEGIES PTY LTD
Ninth Respondent

WOL PROPERTIES PTY LTD
Tenth Respondent

PACIFIC PLACE HOLDINGS PTY LTD
Eleventh Respondent

TULLOCH LODGE LIMITED
Twelfth Respondent

TULLOCH…

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.

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Details

Case: [2006] FCA 1826
Decision Date: 15 DECEMBER 2006

CaseChat Overview and Summary

The case of Nicol v PGLE Pty Ltd involved a dispute between the applicant, Nicol, and the respondent, PGLE Pty Ltd. Nicol sought a stay of proceedings against the respondent, citing reasons related to the respondent’s financial standing and the potential impact on other creditors. The matter was heard in the Supreme Court of Victoria, where the primary legal issues revolved around the principles of equity and the appropriateness of granting a stay in the circumstances presented.

The court considered whether the applicant had demonstrated sufficient grounds to warrant a stay of proceedings, particularly focusing on the respondent's ability to meet its financial obligations and the potential consequences for other creditors if a stay were granted. The decision required careful analysis of the balance between the applicant’s rights and the broader interests of justice, including the rights of other creditors and the principles of equitable distribution of assets.

The court ultimately found that the applicant had not provided adequate justification for the requested stay. It held that there was no compelling reason to interfere with the ongoing proceedings, as the applicant's concerns did not outweigh the interests of other creditors and the principles of fairness. Consequently, the application for a stay was dismissed, and the applicant was ordered to pay the respondent's costs incurred in responding to the motion.

Orders

Orders of the court

1. The application for a stay be dismissed.

2. The applicant on the notice of motion pay the respondent to the notice of motion’s costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

LANDER J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: LANDER J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 185 OF 2005

JUDGE:	LANDER J
DATE OF ORDER:	15 DECEMBER 2006
WHERE MADE:	ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 185 OF 2005