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Saleh v Romanous

Saleh v Romanous

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New South Wales

Court of Appeal

CITATION: Saleh v Romanous [2010] NSWCA 373

HEARING DATE(S): 6, 16 December 2010

JUDGMENT OF: McColl JA at 1

EX TEMPORE JUDGMENT DATE: 16 December 2010

DECISION: 1. Upon the undertaking of the Second Appellant, to prosecute her application for special leave to appeal, and if each application be granted, the appeal, with due diligence and expedition, order that the orders made by Justice Forster on 20 November 2009 be stayed until the hearing and determination of the Applicant’s application for special leave to the High Court of Australia, and if special leave be granted, until the hearing and determination of her appeal. 2. Order that the Second Appellant be restrained until further order, without the consent of the Respondents in writing, from selling, transferring, mortgaging, charging, further encumbering or otherwise dealing in any way with the properties referred to in paragraph 17 of her affidavit of 19 November 2010, the Business referred to in that affidavit, being the business known as Cosmopolitan Shoes at Double Bay and any interest in Cosmo (NSW) Pty Ltd (together “the Properties”) and from doing anything whereby any of the same may be done in respect of the Properties. 3. Order that the Second Appellant be restrained until further order, without the consent of the Respondents in writing from increasing the borrowings secured upon any of the Properties and from doing or failing to do anything whereby any such borrowings may be increased, except for any drawings on the overdraft facility referred to in paragraph 19 of the said affidavit up to the limit as referred to in that affidavit and except in respect of the accumulation of interest in accordance with the terms of any relevant agreements with the lenders having the benefit of the said securities. 4. Order the Second Appellant to pay the costs of the hearing on 6 December 2010 and that the costs of the hearing today and of the application be costs in the application for special leave. 5. Grant liberty to the parties to apply on 2 days’ notice.

CATCHWORDS: PROCEDURE – application for stay pending special leave application – principles to be applied

LEGISLATION CITED: Civil Procedure Act 2005 (NSW)
Federal Court Act 1976 (Cth)

CATEGORY: Procedural and other rulings

CASES CITED: Alexander v Cambridge Credit Corporation Ltd (Receivers appointed) (1985) 2 NSWLR 685
Bank Negara Indonesia v Hoalim [1973] 2 MLJ 3
Bennette v Cohen (No 2) [2009] NSWCA 162
Branir Pty Limited v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424
Bryant v Commonwealth Bank of Australia [1996] HCA 3; (1996) 70 ALJR 306
Clowes v Higginson (1813) 1 Ves & B 524; 35 ER 204
Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394
Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; (2004) 218 CLR 271
Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 264 ALR 15
Giumelli v Giumelli…

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.

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Details

Case: [2010] NSWCA 373
Decision Date: 16 December 2010

CaseChat Overview and Summary

In *Saleh v Romanous*, the Second Appellant sought a stay of orders made by Justice Forster on 20 November 2009, pending an application for special leave to appeal to the High Court of Australia. The dispute concerned the Second Appellant's dealings with certain properties and a business, and the respondents sought to restrain her from dealing with these assets.

The primary legal issue before McColl JA was whether to grant a stay of the existing orders and impose interlocutory injunctions restraining the Second Appellant from dealing with specified assets, including properties and a business known as Cosmopolitan Shoes, and from increasing borrowings secured on those properties.

McColl JA granted the stay and imposed the injunctions upon the Second Appellant providing an undertaking to prosecute her application for special leave to appeal and, if granted, the appeal, with due diligence and expedition. The court also ordered that the Second Appellant be restrained from selling, transferring, mortgaging, charging, further encumbering, or otherwise dealing with the specified properties and business, and from increasing borrowings secured on those properties, with limited exceptions for an overdraft facility and the accumulation of interest. The Second Appellant was ordered to pay the costs of one hearing, with the costs of the current hearing and application to be costs in the special leave application. Liberty was granted to the parties to apply on short notice.

Orders

Orders of the court

1. Upon the undertaking of the Second Appellant, to prosecute her application for special leave to appeal, and if each application be granted, the appeal, with due diligence and expedition, order that the orders made by Justice Forster on 20 November 2009 be stayed until the hearing and determination of the Applicant’s application for special leave to the High Court of Australia, and if special leave be granted, until the hearing and determination of her appeal. 2. Order that the Second Appellant be restrained until further order, without the consent of the Respondents in writing, from selling, transferring, mortgaging, charging, further encumbering or otherwise dealing in any way with the properties referred to in paragraph 17 of her affidavit of 19 November 2010, the Business referred to in that affidavit, being the business known as Cosmopolitan Shoes at Double Bay and any interest in Cosmo (NSW) Pty Ltd (together “the Properties”) and from doing anything whereby any of the same may be done in respect of the Properties. 3. Order that the Second Appellant be restrained until further order, without the consent of the Respondents in writing from increasing the borrowings secured upon any of the Properties and from doing or failing to do anything whereby any such borrowings may be increased, except for any drawings on the overdraft facility referred to in paragraph 19 of the said affidavit up to the limit as referred to in that affidavit and except in respect of the accumulation of interest in accordance with the terms of any relevant agreements with the lenders having the benefit of the said securities. 4. Order the Second Appellant to pay the costs of the hearing on 6 December 2010 and that the costs of the hearing today and of the application be costs in the application for special leave. 5. Grant liberty to the parties to apply on 2 days’ notice.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Saleh v Romanous [2010] NSWCA 373
HEARING DATE(S):	6, 16 December 2010
JUDGMENT OF:	McColl JA at 1
EX TEMPORE JUDGMENT DATE:	16 December 2010
DECISION:	1. Upon the undertaking of the Second Appellant, to prosecute her application for special leave to appeal, and if each application be granted, the appeal, with due diligence and expedition, order that the orders made by Justice Forster on 20 November 2009 be stayed until the hearing and determination of the Applicant’s application for special leave to the High Court of Australia, and if special leave be granted, until the hearing and determination of her appeal. 2. Order that the Second Appellant be restrained until further order, without the consent of the Respondents in writing, from selling, transferring, mortgaging, charging, further encumbering or otherwise dealing in any way with the properties referred to in paragraph 17 of her affidavit of 19 November 2010, the Business referred to in that affidavit, being the business known as Cosmopolitan Shoes at Double Bay and any interest in Cosmo (NSW) Pty Ltd (together “the Properties”) and from doing anything whereby any of the same may be done in respect of the Properties. 3. Order that the Second Appellant be restrained until further order, without the consent of the Respondents in writing from increasing the borrowings secured upon any of the Properties and from doing or failing to do anything whereby any such borrowings may be increased, except for any drawings on the overdraft facility referred to in paragraph 19 of the said affidavit up to the limit as referred to in that affidavit and except in respect of the accumulation of interest in accordance with the terms of any relevant agreements with the lenders having the benefit of the said securities. 4. Order the Second Appellant to pay the costs of the hearing on 6 December 2010 and that the costs of the hearing today and of the application be costs in the application for special leave. 5. Grant liberty to the parties to apply on 2 days’ notice.
CATCHWORDS:	PROCEDURE – application for stay pending special leave application – principles to be applied
LEGISLATION CITED:	Civil Procedure Act 2005 (NSW) Federal Court Act 1976 (Cth)
CATEGORY:	Procedural and other rulings
CASES CITED:	Alexander v Cambridge Credit Corporation Ltd (Receivers appointed) (1985) 2 NSWLR 685 Bank Negara Indonesia v Hoalim [1973] 2 MLJ 3 Bennette v Cohen (No 2) [2009] NSWCA 162 Branir Pty Limited v Owston Nominees (No 2) Pty Ltd [2001] FCA 1833; (2001) 117 FCR 424 Bryant v Commonwealth Bank of Australia [1996] HCA 3; (1996) 70 ALJR 306 Clowes v Higginson (1813) 1 Ves & B 524; 35 ER 204 Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394 Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55; (2004) 218 CLR 271 Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407; (2009) 264 ALR 15 Giumelli v Giumelli…