Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Ramsay v BigTinCan Pty Ltd [2014] NSWCA 452 Hearing dates: 15 and 17 December 2014 Decision date: 17 December 2014 Before: Basten JA Decision: (1) Upon the applicants, by their counsel, undertaking to proceed expeditiously with the application for special leave to appeal to the High Court and any resultant appeal, and subject to the undertakings given below, and on the condition set out at (3) below, enforcement of the orders made by Ball J on 4 September 2013 and of the Court of Appeal made on 16 September 2014 in proceedings 2013/296002 be stayed until the later of:
(a) the determination of the application for special leave to appeal in the High Court in matter number S268 of 2014; and
(b) if special leave is granted, the determination of the appeal.
(2) The first applicant undertakes to the Court that he will not dispose of, alienate, charge, or encumber his assets until the determination of the special leave application other than to meet:
(a) his ordinary living costs and expenses, and
(b) his legal costs of and incidental to the prosecution of his special leave application.
(3) The first applicant charges (subject to existing encumbrances) his equity in the property contained in folio identifier Lot 59A DP321302 (being the property located at 41 Monash Parade, Dee Why, New South Wales 2099) with his liability (including as to costs and interest) to the respondent pursuant to the orders made by Ball J on 4 September 2013 and by the Court of Appeal on 16 September 2014.
(4) The first applicant undertakes to notify the respondent immediately on learning of the commencement of divorce proceedings by his wife Noelene Ramsay or any attempt by his wife to dispose of, alienate, charge or encumber the property located at 41 Monash Parade, Dee Why.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords: PRACTICE AND PROCEDURE - stay pending application for special leave to appeal to High Court - factors relevant in ordering a stay - prospects of success of special leave application - prejudice to the applicants and respondent if stay ordered or not Cases Cited: BigTinCan Pty Ltd v Ramsay [2013] NSWSC 1248
Firebird Global Master Fund II Ltd v Republic of Nauru (No 2) [2014] NSWCA 375
Ramsay v BigTinCan Pty Ltd [2014] NSWCA 324Category: Procedural and other rulings Parties: David Ramsay (First Applicant)
Roel Pollers (Second Applicant)
BigTinCan Pty Ltd (Respondent)Representation: Counsel:
Mr C Botsman (Applicants)
Mr AP Cheshire (Respondent)
Solicitors:
Barraket Stanton Lawyers (Applicants)
McLachlan Thorpe Partners (Respondent)
File Number(s): CA 2013/296002
Judgment
BASTEN JA
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- AGLC
- Ramsay v BigTinCan Pty Ltd [2014] NSWCA 452
- Case
- [2014] NSWCA 452
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether to grant a stay of enforcement of the existing orders. In determining this, the court was required to consider the relevant factors for ordering a stay, including the prospects of success of the special leave application and the potential prejudice to both the applicants and the respondent if a stay were granted or refused.
Basten JA granted the stay, subject to several conditions. The applicants were required to undertake to proceed expeditiously with their special leave application and any subsequent appeal. The first applicant further undertook not to dispose of, alienate, charge, or encumber his assets, except for ordinary living costs and legal expenses related to the special leave application. Additionally, the first applicant was ordered to charge his equity in a specific property with his liability to the respondent under the existing orders and to notify the respondent of any divorce proceedings initiated by his wife or any attempts by her to deal with that property.
Orders
Orders of the court
(1) Upon the applicants, by their counsel, undertaking to proceed expeditiously with the application for special leave to appeal to the High Court and any resultant appeal, and subject to the undertakings given below, and on the condition set out at (3) below, enforcement of the orders made by Ball J on 4 September 2013 and of the Court of Appeal made on 16 September 2014 in proceedings 2013/296002 be stayed until the later of:
(a) the determination of the application for special leave to appeal in the High Court in matter number S268 of 2014; and
(b) if special leave is granted, the determination of the appeal.
(2) The first applicant undertakes to the Court that he will not dispose of, alienate, charge, or encumber his assets until the determination of the special leave application other than to meet:
(a) his ordinary living costs and expenses, and
(b) his legal costs of and incidental to the prosecution of his special leave application.
(3) The first applicant charges (subject to existing encumbrances) his equity in the property contained in folio identifier Lot 59A DP321302 (being the property located at 41 Monash Parade, Dee Why, New South Wales 2099) with his liability (including as to costs and interest) to the respondent pursuant to the orders made by Ball J on 4 September 2013 and by the Court of Appeal on 16 September 2014.
(4) The first applicant undertakes to notify the respondent immediately on learning of the commencement of divorce proceedings by his wife Noelene Ramsay or any attempt by his wife to dispose of, alienate, charge or encumber the property located at 41 Monash Parade, Dee Why.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
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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