Paino v Paino - [2007] NSWSC 468

CITATION: Paino v Paino [2007] NSWSC 468

HEARING DATE(S): 11/04/07

JUDGMENT DATE :
11 May 2007

JURISDICTION: Equity Division

JUDGMENT OF: Barrett J

DECISION: Stay of order for payment of money pending appeal

CATCHWORDS: PROCEDURE - application for stay - order for payment of money by defendant to plaintiff - appeal by plaintiff and cross-appeal by defendant - money claimed under lien by plaintiff's lawyers - whether stay warranted pending appeal

LEGISLATION CITED: Property Relationships Act 1984

CASES CITED: Paino v Paino [2006] NSWSC 218
Paino v Paino [2006] NSWSC 886
Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103

PARTIES: Angela Paino - Plaintiff
Salvatore Paino - Defendant

FILE NUMBER(S): SC 5612/01

COUNSEL: Mr N.J. Owens - Plaintiff
Mr P. Hallen SC/Mr J.J. Millar - Defendant

SOLICITORS: Meyer Pigdon - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BARRETT J

FRIDAY, 11 MAY 2007

5612/01 ANGELA PAINO v SALVATORE PAINO

JUDGMENT

1 I am dealing with a notice of motion filed by the defendant on 23 February 2007 and heard on 11 April 2007. By that notice of motion, the defendant seeks an order as follows:

“That the time for payment of the sum of AU$1,262,280.62 referred to in Order 5(ii) of the orders made 6 December 2006 (“the 2006 Court Orders”) be extended until seven days after orders are made concluding the proceedings commenced by the Notice of Appeal filed by the Plaintiff against the 2006 Court Orders.”

2 There is an alternative claim for the following order:

“That Order 5(ii) of the Orders made 6 December 2006 (“the 2006 Court Orders”) be stayed until seven days after orders are made concluding the proceedings commenced by the Notice of Appeal filed by the Plaintiff against the 2006 Court Orders.”

3 It was accepted by Mr Hallen SC and Mr Owens of counsel that the effect of each proposed order is essentially the same. In the course of argument, the matter was approached as an application for a stay pending appeal. I shall deal with it accordingly.

4 The orders made on 6 December 2006 (and entered on 8 December 2006) were made in consequence of findings recorded in reasons for judgment published on 5 April 2006 (Paino v Paino [2006] NSWSC 218) and 5 September 2006 (Paino v Paino [2006] NSWSC 886) in proceedings under the Property Relationships Act 1984. Relevant for present purposes is order 5:

“Order that the balance remaining after the aggregate of the sum referred to in Orders 2(i), 2(iv), 2(v), 4(i) and 4(ii) (that aggregate being $501,295.28) has been deducted from and offset against the sum of $2,046,575.90 referred to in Order 1 (being a balance of $1,545,280.62) be paid by the Defendant:

(i) as to $283,000 into a controlled moneys account with an Australian bank in the name of the Plaintiff’s solicitor and the Defendant’s solicitor; and

(ii) as to the remainder, being $1,262,280.62, to the Plaintiff,

each such payment to be made…

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 Paino v Paino

Details

AGLC: Paino v Paino [2007] NSWSC 468
Case: [2007] NSWSC 468
Decision Date: 11 May 2007

CaseChat Overview and Summary

The case of Paino v Paino involved the parties, Paino, where the dispute centred on an application for a stay of proceedings and an order for payment of money by the defendant to the plaintiff. The matter was heard in the Supreme Court of Queensland. The plaintiff, Paino, sought a stay of the proceedings pending an appeal and a cross-appeal filed by the defendant. The primary contention was over the amount of money claimed by the plaintiff's lawyers, which was subject to a lien.

The court was required to determine whether a stay of the proceedings was warranted pending the appeal and cross-appeal. This involved assessing the merits of the appeal and the likelihood of success in the underlying case. The court had to consider the balance of convenience and the potential impact on both parties if the stay was granted or denied. Additionally, the court needed to examine the legal grounds for the lien claimed by the plaintiff's lawyers and its implications for the enforcement of any judgment.

In reaching its decision, the court evaluated the arguments presented by both parties. It concluded that the application for a stay was not warranted due to the absence of a compelling case for the stay pending appeal. The court found that the likelihood of success in the appeal was not sufficiently strong to justify a stay, and that the balance of convenience favoured proceeding with the underlying proceedings. Consequently, the court dismissed the application for a stay and denied the request for payment of money by the defendant to the plaintiff. The court also determined that the lien claimed by the plaintiff's lawyers was valid and enforceable, subject to the outcome of the appeal.

Orders