Nolasco v Jenolan Investments Pty Limited

[1985] FCA 698

IN THE FEDERAL COURT OF AUSTRALIA	)
)

NEW SOUTH WALES	REGISTRY	)	No. G165 of 1984
)

- G DIVISION )

BETWEEN:	NOLASCO	ANDRE
Applicant
JENOLAN INVESTMENTS PTY. LIMITED First Respondent ADLEY INVESTMENTS PTY. LIMITED Second Respondent

MINUTES OF ORDER

Judge making order: Beaumont, J.

Date order made:	17 June 1985.
Where made:	Melbourne

THE COURT ORDERS THAT:

1. Order that the existing stay be continued up to and

including 25 June 1985.

2 . Order that the costs of this application be the

cross-claimants' costs in the appeal.

3 . Order that the hearing of the appeal be expedited.

4. Fix 9.30 a.m. on Friday, 21 June 1985 for a hearing

for the giving of further directions in relation to the

2 .

appeal.

Note:

Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

1

N W	SOUTH WALES REGISTRY	)	No. G165 of 1984
)

GENERAL DIVISION )

BETWEEN:

ANDRE NOLASCO

Applicant

JENOLAN INVESTMENTS PTY. LIMITED

First Respondent

ADLEY INVESTMENTS PTY. LIMITED

Second Respondent

CORAM: Beaumont, J.

DATED: 17 June 1985.

REASONS FOR JUIXMENT

Mr. Nolasco has lodged an appeal against the orders

made in the principal proceedings. As a result of my

upholding the cross-claims, Mr. Nolasco is faced with the

prospect of satisfying a verdict against him in an amount in

excess of $1,600,000.00. He has applied for a stay of

proceedings accordingly.

In support of his application, Mr. Nolasco says,

and I accept, that while he is conducting a successful

business as a builder, he does not hold assets sufficient to

satisfy the cross-claim 60 that if the appeal fails he will

2 .

!	- *	become bankrupt. Although he does not offer any security to the cross-claimants, Mr. Nolasco and his family company have
proferred undertakings to the Court that they will not
dispose of any of their assets except in the ordinary course
of business.

In my opinion, Mr. Nolasco has failed to establish

any special circumstances of the kind which would justify a

stay. The evidence, general as it is, suggests that Mr.

Nolasco's business will suffer if bankruptcy proceedings are

instituted against him but this is a collateral matter which

is not strictly relevant to the exercise of the Court's

discretion on a stay application. No attempt was made in

argument on the application to contend that the appeal had

any particular prospects of success: no arguable point of

law or any challenge to a finding of fact was sought to be

identified. In the end, the application was put on an &

misericordiam basis. Whilst one sympathises with the

difficult position in which Mr. Nolasco now finds himself,

the settled course of authority indicates that this type of

consideration does not of itself justify a stay.

I should add that if the judgment were satisfied in

whole or in part and the appeal were successful, there is no the judgment.

basis for suggesting that there is any real possibility that

I propose to refuse the application now made but,

3 .

in the event th ,at Mr. Nolasco may wish to seek leave to appeal from this refusal, I propose to grant a limited stay of seven days to enable any application for leave to appeal

to be dealt with in the interim. In the circumstances,

another judge should deal with the matter.

I make the following orders:

1. Order that the existing Stay be con ltinue to and

including 25 June 1985.

2. Order that the costs of this application be the

cross-claimants' costs in the appeal.

3. Order that the hearing of the appeal be expedited.

4. Fix 9.30 a.m. on Friday, 21 June 1985 for a hearing

for the giving	of further directions	in relation to the
appeal.

Mr Justice Beaumo

Lc3;"\ Associate

Dated 1.3 .6 , 8s