Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Pamplin v Irwin [2024] NSWCA 112 Hearing dates: 13 May 2024 Date of orders: 13 May 2024 Decision date: 13 May 2024 Before: Leeming JA Decision: 1. By consent, vary order 1(b) made on 9 February 2024 and order 2 made on 9 April 2024, in each case in proceeding 2018/00179474, so as to replace the folio identifier “1/538582” by “1/1189317” and to replace the folio identifier “1/653836” by “2/1189317”.
2. Vary order 1 made on 9 April 2024 on the Notice of Motion filed 15 March 2024, which was the order staying those orders until 14 days after reasons have been delivered, by deleting “until 14 days after reasons have been delivered for the orders made today” and replacing those words with “until the determination of the proceedings in the Court of Appeal”. Order 1 in its amended form is therefore as follows:
“Order that the operation of order (3) of 9 February 2024 and orders (1) to (4) of today’s date in the principal proceedings be stayed until the determination of the proceedings in the Court of Appeal, subject to any order made by the Court of Appeal in the meantime.”
3. Upon Ms Irwin by her counsel proffering the usual undertaking as to damages, order that the fourth applicant shall not, until the determination of the proceedings in the Court of Appeal, enter into any contract for sale or otherwise deal with its interest in the properties known as 13 Millar Crescent, Dural (being the land in folio identifier 23/226069) or any of the four properties at Putty Road, Garland Valley (being the land comprised in folio identifiers 24/753818, 74/753818, 75/753818 and 85/753818) without first giving to Ms Irwin through her solicitor 14 days’ notice in writing of its intention to do so.
4. Otherwise dismiss the Notice of Motion filed on 8 May 2024.
5. Each parties’ costs be costs in the cause.
Catchwords: APPEALS – stay of execution – whether transfer of land and property to successful plaintiff should be stayed pending appeal – whether successful plaintiff entitled to Mareva relief pending appeal – stay of execution and limited Mareva relief granted
Legislation Cited: Conveyancing Act 1919 (NSW), s 66G
Cases Cited: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Brown Brothers Waste Contractors Pty Ltd v Pittwater Council (2015) 90 NSWLR 717; [2015] NSWCA 215
Irwin v Pamplin (No 4) [2024] NSWSC 73
Irwin v Pamplin (No 5) [2024] NSWSC 484
Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383
Universal Music Australia Pty Ltd v Sharman Networks Ltd (2006) 150 FCR 110; [2006] FCAFC 41
Category: Procedural rulings Parties: Marie Dawn Pamplin (First Applicant)
Lionel Joseph Pamplin (Second Applicant)
Mircon Pty Ltd (Third Applicant)
Dennis G Pamplin Pty Ltd (Fourth Applicant)
Halcrows Investments Pty Ltd (Fifth Applicant)
NMOS Pty Ltd (Sixth Applicant)
The Peak on Andrew Pty Ltd (Seventh Applicant)
Mircorp International…
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- AGLC
- Pamplin v Irwin [2024] NSWCA 112
- Case
- [2024] NSWCA 112
- Decision Date
CaseChat Overview and Summary
The central legal issues before the court were whether the transfer of land and property to the successful plaintiff should be stayed pending appeal, and whether the successful plaintiff was entitled to Mareva relief pending the appeal.
Leeming JA considered the application for a stay of execution and limited Mareva relief. The court, by consent, varied existing orders to correct folio identifiers relating to property. Crucially, the court varied an earlier order that had stayed the operation of certain orders until 14 days after reasons were delivered, replacing this with a stay until the determination of the proceedings in the Court of Appeal. Furthermore, upon the plaintiff proffering the usual undertaking as to damages, the court ordered that the fourth applicant be restrained from dealing with its interest in specific properties without first giving Ms Irwin 14 days' written notice. The court otherwise dismissed the notice of motion.
The final orders reflected these determinations, including the variation of previous orders, the imposition of a stay pending appeal, and the limited Mareva relief granted to Ms Irwin. The costs of the application were made costs in the cause.
Orders
Orders of the court
1. By consent, vary order 1(b) made on 9 February 2024 and order 2 made on 9 April 2024, in each case in proceeding 2018/00179474, so as to replace the folio identifier “1/538582” by “1/1189317” and to replace the folio identifier “1/653836” by “2/1189317”.
2. Vary order 1 made on 9 April 2024 on the Notice of Motion filed 15 March 2024, which was the order staying those orders until 14 days after reasons have been delivered, by deleting “until 14 days after reasons have been delivered for the orders made today” and replacing those words with “until the determination of the proceedings in the Court of Appeal”. Order 1 in its amended form is therefore as follows:
“Order that the operation of order (3) of 9 February 2024 and orders (1) to (4) of today’s date in the principal proceedings be stayed until the determination of the proceedings in the Court of Appeal, subject to any order made by the Court of Appeal in the meantime.”
3. Upon Ms Irwin by her counsel proffering the usual undertaking as to damages, order that the fourth applicant shall not, until the determination of the proceedings in the Court of Appeal, enter into any contract for sale or otherwise deal with its interest in the properties known as 13 Millar Crescent, Dural (being the land in folio identifier 23/226069) or any of the four properties at Putty Road, Garland Valley (being the land comprised in folio identifiers 24/753818, 74/753818, 75/753818 and 85/753818) without first giving to Ms Irwin through her solicitor 14 days’ notice in writing of its intention to do so.
4. Otherwise dismiss the Notice of Motion filed on 8 May 2024.
5. Each parties’ costs be costs in the cause.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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