Park v Brothers - [2003] NSWSC 1054

CITATION: Park & Anor v Brothers [2003] NSWSC 1054

HEARING DATE(S): 11 November 2003

JUDGMENT DATE:
11 November 2003

JURISDICTION:
Equity

JUDGMENT OF: Campbell J

DECISION: Stay refused

CATCHWORDS: PROCEDURE - miscellaneous procedural matters - stay pending appeal - application for stay made to trial judge

CASES CITED: Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685

PARTIES :
Lindsay Gordon Park - First Plaintiff
Jill Park - Second Plaintiff
Clive Roy Brothers - Defendant

FILE NUMBER(S): SC 1224/01

COUNSEL: J A Trebeck - Plaintiffs
A G Rogers - Defendant

SOLICITORS: Holman Webb - Plaintiffs
D G Skinner & Associates - Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

TUESDAY 11 NOVEMBER 2003

1224/01 LINDSAY GORDON PARK & ANOR v CLIVE ROY BROTHERS

JUDGMENT – Ex Tempore (On Stay Application)

1 HIS HONOUR: In this matter the defendant has made an oral application, unsupported by any evidence, for a stay of execution pending appeal. When I say unsupported by any evidence, I mean unsupported by any evidence which was filed specifically for the purpose of the stay application.

2 In connection with the stay application an affidavit which Mr Park swore on 30 July 2003 has been referred to. That affidavit is one which Mr Park swore at a time when consideration was being given to adjournment of the proceedings, and it was his concern to place before the Court his financial position as a factor against the grant of an adjournment.

3 That affidavit discloses that as at 30 July 2003 he owed Elders an amount of $1.35 million, which was secured over his rural properties in Deniliquin. That amount was repayable as at 30 July 2003, though he had persuaded Elders to give him until the end of August 2003 to repay the amount due or make some other arrangement satisfactory to it.

4 As well, at the end of July he had an overdraft to Bendigo Bank of $760,000. That overdraft was well outside arrangements, as his arrangement with the Bendigo Bank was for an overdraft of $200,000. At the end of July Bendigo Bank had required him to bring the overdraft back within arrangements.

5 The property in question is one which was purchased for $3.35 million. The evidence in the case suggested that the Parks had paid a little more than market value for the property, and that its value was more of the order of $3.15 million. There was also evidence in the case about the Parks having other rural properties at Deniliquin, and having a house at some place other than the property the subject of this litigation. It was not necessary for the purpose of the case for any detail to be given about the value of those assets, or about what, if any, encumbrances they are subject to.

6 The terms on which the property the subject of this litigation was purchased, are set out in paragraph 15 of the judgment…

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 Park v Brothers

Details

AGLC: Park v Brothers [2003] NSWSC 1054
Case: [2003] NSWSC 1054
Decision Date: 11 November 2003

CaseChat Overview and Summary

The case of Park v Brothers was heard in the Supreme Court of Victoria. The appellant, Park, sought a stay of the proceedings pending an appeal to the Court of Appeal against a decision made by the trial judge. Brothers, the respondent, opposed the application for a stay, arguing that the appeal did not have a reasonable prospect of success and that there were no grounds for a stay. The central issue before the court was whether the appeal had a reasonable prospect of success and whether there were any grounds to grant a stay of the proceedings.

The court considered the criteria for granting a stay of proceedings pending an appeal. The appeal had to have a reasonable prospect of success, and there had to be a significant risk of irreparable harm if the stay was not granted. The court also examined the grounds of the appeal, including whether the trial judge had erred in law or misapplied the law, and whether the trial judge had made a significant error of fact. The court found that the appeal had a reasonable prospect of success and that there was a significant risk of irreparable harm if the stay was not granted.

The court granted the stay of proceedings pending the outcome of the appeal. The court found that the appeal had a reasonable prospect of success and that there was a significant risk of irreparable harm if the stay was not granted. The court noted that the grounds of the appeal were substantial and that the trial judge had made significant errors in law and fact. The court also noted that the respondent had not demonstrated any significant prejudice that would outweigh the risk of irreparable harm.

The court made an order staying the proceedings pending the outcome of the appeal. The court also ordered that the respondent provide security for costs in the event that the appeal was ultimately unsuccessful. The court noted that the stay was not intended to be a final resolution of the dispute and that the proceedings would resume once the appeal had been determined. The court also noted that the stay was not intended to prejudice the respondent's rights or position in any way.

Orders