Scrivener v Cappello - [2021] NSWCA 239

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Scrivener v Cappello [2021] NSWCA 239
Hearing dates: 29 September 2021
Date of orders: 1 October 2021
Decision date: 01 October 2021
Before: Macfarlan JA
Decision:
(1)   Upon the first and second respondents undertaking to the Court within 7 days (a) that any proceeds of enforcement of the subject judgments will be paid into the trust account of their solicitors, RJI Legal, pending final orders being made disposing of the appeal and cross-appeal in these proceedings and (b) that neither of them will cause a Bankruptcy Notice to be issued or served on the appellant prior to final orders being made disposing of the appeal and cross-appeal in these proceedings, the appellant’s Notice of Motion seeking a stay is dismissed.
(2)   Order (1) is to take effect upon the first and second respondents filing in the Court signed undertakings to the Court as described above.
(3)   Leave is granted to the appellant to relist his motion for further hearing in the event that the undertakings referred to in Order (1) are not filed within 7 days of the date of these orders.
(4)    The costs of the motion for the stay are the first and second respondents’ costs in the appeal.

Catchwords:
APPEALS – procedure – application for stay of judgment pending appeal – stay refused on the condition that the first and second respondents give certain undertakings

Cases Cited:
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685

Category: Procedural rulings
Parties: Mr John Sidney Scrivener (Appellant)
Mr John Cappello (First Respondent)
Shaka Holdings Pty Ltd (Second Respondent)
Tuscany Corporation Pty Ltd (Third Respondent)
Representation:
Counsel:
B DeBuse (Appellant)
D Rayment (First and Second Respondents)
No appearance (Third Respondent)
Solicitors:
Marsdens Law Group (Appellant)
RJI Legal (First and Second Respondents)

File Number(s): 2021/76890
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity – Technology and Construction List

Citation:

[2020] NSWSC 1748;
[2021] NSWSC 168

Date of Decision:

7 December 2020;
2 March 2021

Before:

Stevenson J

File Number(s):

2018/129029

Judgment

The parties to the present stay application and the appeal in which it is filed were parties to proceedings in the Equity Division concerning an agreement for the consolidation and possible development of three adjoining parcels of land. Following judgments of 7 December 2020 and 2 March 2021, Stevenson J ordered Mr Scrivener and a company with which he is associated, Tuscany Corporation Pty Ltd (“Tuscany”), to pay to Shaka Holdings Pty Ltd (“Shaka”), a company associated with Mr John Cappello, equitable compensation in the amount of $6,203,689.48, inclusive of interest. Mr Scrivener has appealed to this Court against that judgment and his appeal is fixed for hearing on 28 October 2021. Tuscany has not appealed but was joined by Mr Scrivener as the third respondent to his appeal.
The form of the judgment entered by the primary judge flowed from his Honour’s finding (and consequent declaration) that there was a…

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 Scrivener v Cappello

Details

AGLC: Scrivener v Cappello [2021] NSWCA 239
Case: [2021] NSWCA 239
Decision Date: 01 October 2021

CaseChat Overview and Summary

In *Scrivener v Cappello*, heard before Macfarlan JA of the Court of Appeal of New South Wales, the appellant sought a stay of judgment pending the determination of an appeal and cross-appeal. The core of the dispute revolved around the appellant's desire to prevent the enforcement of existing judgments against him while the substantive appeal was being heard.

The primary legal issue before the Court was whether to grant the appellant's application for a stay of the judgments. This required the Court to consider the conditions under which a stay would be appropriate, particularly in light of the respondents' potential actions to enforce those judgments, such as the issuance of a Bankruptcy Notice.

Macfarlan JA determined that a stay would not be granted outright. Instead, the Court imposed conditions on the first and second respondents. These conditions, which were to be formalized by the respondents filing signed undertakings within seven days, included that any proceeds from the enforcement of the judgments would be paid into the trust account of their solicitors, and that neither respondent would issue or serve a Bankruptcy Notice on the appellant before the final resolution of the appeal and cross-appeal. The appellant was granted leave to relist the motion should these undertakings not be filed within the specified timeframe. The costs associated with the stay motion were to be borne by the respondents as part of their costs in the main appeal.

Orders

Orders of the court

(1) Upon the first and second respondents undertaking to the Court within 7 days (a) that any proceeds of enforcement of the subject judgments will be paid into the trust account of their solicitors, RJI Legal, pending final orders being made disposing of the appeal and cross-appeal in these proceedings and (b) that neither of them will cause a Bankruptcy Notice to be issued or served on the appellant prior to final orders being made disposing of the appeal and cross-appeal in these proceedings, the appellant’s Notice of Motion seeking a stay is dismissed.

(2) Order (1) is to take effect upon the first and second respondents filing in the Court signed undertakings to the Court as described above.

(3) Leave is granted to the appellant to relist his motion for further hearing in the event that the undertakings referred to in Order (1) are not filed within 7 days of the date of these orders.

(4) The costs of the motion for the stay are the first and second respondents’ costs in the appeal.

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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Medium Neutral Citation:	Scrivener v Cappello [2021] NSWCA 239
Hearing dates:	29 September 2021
Date of orders:	1 October 2021
Decision date:	01 October 2021
Before:	Macfarlan JA
Decision:	(1) Upon the first and second respondents undertaking to the Court within 7 days (a) that any proceeds of enforcement of the subject judgments will be paid into the trust account of their solicitors, RJI Legal, pending final orders being made disposing of the appeal and cross-appeal in these proceedings and (b) that neither of them will cause a Bankruptcy Notice to be issued or served on the appellant prior to final orders being made disposing of the appeal and cross-appeal in these proceedings, the appellant’s Notice of Motion seeking a stay is dismissed. (2) Order (1) is to take effect upon the first and second respondents filing in the Court signed undertakings to the Court as described above. (3) Leave is granted to the appellant to relist his motion for further hearing in the event that the undertakings referred to in Order (1) are not filed within 7 days of the date of these orders. (4) The costs of the motion for the stay are the first and second respondents’ costs in the appeal.
Catchwords:	APPEALS – procedure – application for stay of judgment pending appeal – stay refused on the condition that the first and second respondents give certain undertakings
Cases Cited:	Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Category:	Procedural rulings
Parties:	Mr John Sidney Scrivener (Appellant) Mr John Cappello (First Respondent) Shaka Holdings Pty Ltd (Second Respondent) Tuscany Corporation Pty Ltd (Third Respondent)
Representation:	Counsel: B DeBuse (Appellant) D Rayment (First and Second Respondents) No appearance (Third Respondent) Solicitors: Marsdens Law Group (Appellant) RJI Legal (First and Second Respondents)
File Number(s):	2021/76890
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Equity – Technology and Construction List Citation: [2020] NSWSC 1748; [2021] NSWSC 168 Date of Decision: 7 December 2020; 2 March 2021 Before: Stevenson J File Number(s): 2018/129029