Sewell v Zelden (No. 3) - [2010] NSWSC 1361

CITATION: Sewell v Zelden (No. 3) [2010] NSWSC 1361

HEARING DATE(S): 18 November 2010

JUDGMENT DATE :
23 November 2010

JURISDICTION: Equity Division

JUDGMENT OF: Rein J

DECISION: 1. Upon performance of the condition in Order 2, stay the orders made by this Court on 1 October 2010 ([2010] NSWSC 1181) up to and including the date upon which the defendants' appeals are determined.
2. The conditions to which Order 1 refer are that:
(a) The first defendant within 14 days to pay the sum of $170,000 to the plaintiff.
(b) Each of the defendants undertaking to the Court to proceed expeditiously with their appeals.
3. Any undertaking to be given to the Court in pursuance of these orders may be given by filing a signed form of undertaking in the Registry.
4. The defendants to pay the plaintiff's costs of the Notice of Motion filed on 8 November 2010.

CATCHWORDS: APPEAL AND NEW TRIAL - appeal - practice and procedure - New South Wales - stay of proceedings - application for stay of judgment and orders - conditions of stay

LEGISLATION CITED: Uniform Civil Procedure Rules (2005) NSW

CATEGORY: Procedural and other rulings

CASES CITED: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737
Sewell v Zelden [2010] NSWSC 1180
Sewell v Zelden (No. 2) [2010] NSWSC 1181
TCN Channel 9 Pty Limited v Antoniadis (No. 2) (1999) 48 NSWLR 381

PARTIES: Phillip Malcolm Sewell (plaintiff)
Boris Zelden (first defendant)
Henamast Pty Limited (second defendant)
Elena Zelden (third defendant)

FILE NUMBER(S): SC 2009/287105

COUNSEL: G M Drew (plaintiff)
S Y Reuben (first defendant)
D E Baran (second and third defendants)

SOLICITORS: Williams & Co. Solicitors (plaintiff)
Zelden Solicitors (first defendant)
Colin Daley Quinn Solicitors (second and third defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

Rein J

Date of Hearing: 18 November 2010
Date of Judgment: 23 November 2010

2009/287105 Phillip Malcolm Sewell v Boris Zelden and ors (No. 3)

JUDGMENT (EX TEMPORE)

1 REIN J: This is an application by means of a Notice of Motion filed by the defendants on 8 November 2010 for a stay of the judgment and orders made by me on 1 October 2010. The Notice of Motion was filed after the expiry of the time within which the judgment debt was to be paid. By virtue of reasons handed down on 3 September 2010 (Sewell v Zelden [2010] NSWSC 1180) and 1 October (Sewell v Zelden (No. 2) [2010] NSWSC 1181), the combined effect of the judgment and orders was to award the plaintiff, Mr Sewell (for whom Mr G Drew of counsel appears), an amount of $60,000 plus interest calculated to be $30,848.22. Ancillary orders against the defendants were also made, including costs orders.

2 These reasons for judgment assume familiarity with the earlier reasons for judgment, but essentially the first defendant, Mr Zelden (for whom Mr S Reuben…

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 Sewell v Zelden (No. 3)

Details

AGLC: Sewell v Zelden (No. 3) [2010] NSWSC 1361
Case: [2010] NSWSC 1361
Decision Date: 23 November 2010

CaseChat Overview and Summary

The appeal in Sewell v Zelden (No. 3) before the Supreme Court of New South Wales involved a dispute between the parties concerning an application for a stay of judgment and orders. The case was a continuation of a long-running series of proceedings involving the same parties, with the current matter focusing on an application for a stay of the judgment and orders made by the court below. The primary legal issues for the court were whether the application for a stay of judgment and orders should be granted and, if so, on what conditions.

The court considered the legal principles relevant to the grant of a stay of judgment and orders, including the balance of convenience and the need for certainty in legal proceedings. The court examined the circumstances of the case, including the history of the litigation and the arguments presented by both parties. The court held that the application for a stay of judgment and orders should be granted, subject to certain conditions. The court found that the balance of convenience favoured the grant of a stay, and that the applicant had satisfied the requirements for a stay in exceptional circumstances. The court also set out the conditions for the stay, including the requirement that the applicant provide security for costs and that the stay be for a fixed period.

The final orders of the court were that the judgment and orders of the court below be stayed for a period of six months, subject to the conditions set out in the judgment. The court also ordered that the applicant provide security for costs in the amount of $20,000, and that the respondent be at liberty to apply for the setting aside of the stay if the applicant failed to comply with the conditions of the stay. The case highlights the importance of considering the balance of convenience and the need for certainty in legal proceedings when deciding whether to grant a stay of judgment and orders.

Orders