Sakha v Sandhurst Trustees Limited

[1999] NSWCA 160

CITATION:	SAKHA v SANDHURST TRUSTEES LIMITED [1999] NSWCA 160
FILE NUMBER(S):	CA 40296/99
HEARING DATE(S):	24 May 1999
JUDGMENT DATE:	24 May 1999
PARTIES :	Hossein Sakha v Sandhurst Trustees Limited
JUDGMENT OF:	Stein JA at 1

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DC 1732/97 DC 3896/97
LOWER COURT JUDICIAL OFFICER:	Armitage DCJ

COUNSEL:	J. Jobson (Claimant) R. Schneider (Opponent)
SOLICITORS:	Andresakis & Associates (Claimant) Michell Sillar (Opponent)
CATCHWORDS:	Application for a stay of proceedings pending the hearing of an application for leave to appeal and associated application for extension of time for leave to appeal
ACTS CITED:	n/a
CASES CITED:	n/a
DECISION:	Notice of Motion of 12 April 1999 dismissed with costs

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40296/99

STEIN JA

Monday, 24 May 1999

Hossein SAKHA v SANDHURST TRUSTEES LIMITED
JUDGMENT

1    STEIN JA: This is an application for a stay of proceedings pending the hearing of an appeal proceeding by the notice of motion of the claimants dated 12 April 1999. However, in effect, the stay is initially sought pending the hearing of an application for leave to appeal and associated application for extension of time for leave to appeal. I understand that the leave application and associated motion are before the Registrar on 21 June or thereabouts and it is likely that the leave application will be heard by the court within 2 or 3 weeks of that date, if not before. The application for a stay arises out of Judgment and orders given by the District Court on 15 June 1998 following an initial judgment of Armitage DCJ on 4 June 1998. 2    The matter involved the hearing of two cases between the parties which were, by consent, heard together. One case was between the opponent, Sandhurst Trustees Limited and the claimants, Mr and Mrs Sakha. The other case was brought by the Sakhas against Sandhurst Trustees and related to a claim for unlawful detention of property. Both matters arise out of a shopping centre dispute and premises occupied by the Sakhas. In both cases, Armitage DCJ found in favour of Sandhurst Trustees. 3    In the principal case, if I can call it that (which related to arrears of rental and interest) his Honour found a Judgment for the plaintiff against the defendants, ultimately in the sum of $29,734.20. 4    In the other matter, the case brought by the Sakhas, there was a verdict for the defendant, Sandhurst Trustees. In both cases the Sakhas were ordered to pay the costs. 5    As I have said, the verdicts were given on 15 June 1998 following reasons for judgment on 4 June and a hearing in May 1998. Almost a year later the court is dealing with a stay application. There has been considerable delay which is unedifying so far as the claimants are concerned. Even at this point in time, as I have mentioned, they do not have leave to appeal, and in addition, there is an extension of time to appeal outstanding. 6    Proposed notice of grounds of appeal are set out in the white book. They raise a number of grounds in relation to each of the matters sought to be appealed from. The action concerning the wrongful detention of goods seems to have been essentially determined on the facts, and it is difficult for the claimants to challenge those factual findings. The other action concerns the arrears on rental, which is admitted in terms of rental arrears but not the legality of the entitlement of Sandhurst Trustees Limited to the moneys. This raises issues of law, particularly in relation to the assignment of the debt. 7    As to the likelihood of success of the appeal, should leave be granted, I find it difficult to be definite. Certainly the appeal relating to the wrongful detention of goods does not seem to be very arguable. The principal appeal, which goes to the verdict of $29,734 for arrears of rental, may have a little more possibility of success because it alleges errors of law. However, the chances do not seem to be great, although I hesitate to say too much because the leave application has not been heard and will be heard.

8    I should mention that there are bankruptcy proceedings in the Federal Court. There is listed for hearing, I think tomorrow, a creditors' petition by the opponent. I am informed that the petition is disputed by the claimants. The essential basis of the dispute is the issue of solvency. That arises because the claimants say, and this is to be found in an affidavit of Mr Peter Skouteris, solicitor, sworn 21 May 1999, that they are solvent to the point of in excess of $2,000,000.

9    The claimants are prepared to undertake to the court, as I understand the submission of Mr Jobson, not to dispose of their property or otherwise diminish it in order to protect the opponent from what is really not a huge verdict, something less than $30,000 plus costs.Mr Jobson has no instructions to offer any other condition for any stay and it may be noted that one of the claimants is overseas until July.

10    I am not satisfied that in all the circumstances it is appropriate to stay the judgment of Armitage DCJ in either matter. The amount involved is relatively small, the delay has been almost 12 months and we are still at the point where no leave to appeal has been granted. The likelihood of success is not great, in so far as I understand what has been put to me at this point in time. This would be particularly so in relation to the wrongful detention of goods proposed appeal.

11    It seems to me that the leave application should go forward and if leave is granted, it may be appropriate for the claimants to make a further stay application. If they obtain leave, they may be in a stronger position to obtain a conditional stay. However, at this point of time I do not think it appropriate to grant a stay of the judgments and verdicts of Armitage DCJ.

12    Accordingly, the notice of motion of 12 April 1999 is dismissed with costs.

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