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Short v Crawley (No 42)

Short v Crawley (No 42)

Case [2009] NSWSC 1110 2 October 2009

Jurisdiction

Stay of Proceedings

Consent Orders

Execution of Judgments

Civil Litigation & Procedure

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CITATION: Short v Crawley (No. 42) [2009] NSWSC 1110

HEARING DATE(S): 1 and 2 October 2009

JUDGMENT DATE :
2 October 2009

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 2 October 2009

DECISION: Refer to paras 85 and 86 of judgment.

CATCHWORDS: Practice and Procedure - application to vary consent orders providing for a stay of execution of orders until the conclusion of any and all appeals and for the provision of security - subsequent withdrawal of many grounds of appeal - whether jurisdiction to vary consent orders to permit execution of judgments no longer challenged and to allow plaintiffs to reduce their bank guarantee – whether jurisdiction should be exercised

LEGISLATION CITED: Civil Procedure Act 2005 (NSW)
Interpretation Act 1987 (NSW)
Supreme Court Act 1970 (NSW)

CATEGORY: Procedural and other rulings

CASES CITED: Short v Crawley (No. 30) [2007] NSWSC 1322
Short v Crawley (No. 38) [2008] NSWSC 917
Short v Crawley (No. 39) [2008] NSWSC 1353
Short v Crawley (No. 33), 28 March 2008
R D Werner & Co Inc. v Bailey Aluminium Products Pty Ltd (1988) 18 FCR 389
Harvey v Phillips (1956) 95 CLR 235
Wilkshire v The Commonwealth (1976) 9 ALR 325
Adam P Brown Male Fashions Pty Limited v Philip Morris Inc (1981) 148 CLR 170
Morgan v 45 Flers Avenue Pty Ltd (1987) 11 NSWLR 573
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
Paino v Hofbauer (1988) 13 NSWLR 193
Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 QdR 593
Alford v Ebbage [2002] QCA 194; [2003] 1 QdR 343
Dwyer v National Companies & Securities Commission (No. 2) (1988) 15 NSWLR 285
Hancock v Arnold [2009] NSWCA 19
Saul v Lin [2007] NSWSC 782
Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44

PARTIES: Roslyn Short as executrix of the estate of the late Warwick Gordon Short & Anor
v
Christopher Crawley & 9 Ors

FILE NUMBER(S): SC 2824/98

COUNSEL: Plaintiffs: J T Gleeson SC with T M Thawley
Defendants: W G Muddle SC

SOLICITORS: Plaintiffs: Freehills
Defendants: Bruce Stewart Dimarco Lawyers

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday, 2 October 2009

2824/98 Roslyn Short as executrix of the estate of the late Warwick Gordon Short & Anor v Christopher Crawley & 9 Ors (No. 42)

JUDGMENT

1 HIS HONOUR: By a notice of motion filed on 14 September 2009, the plaintiffs seek to vary orders made on 26 November 2008. They seek to vary the terms on which certain of the orders of 19 December 2007 have been stayed, to permit Nabatu and the receiver of the Australian Youth Hotel partnership to have recourse to bank guarantees which secure payment of certain of the judgment debts. They also seek to vary an order requiring Nabatu to furnish a bank guarantee to secure the repayment of any sum which it might be found on appeal should be repaid by Nabatu to…

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 Short v Crawley (No 42)

Details

AGLC: Short v Crawley (No 42) [2009] NSWSC 1110
Case: [2009] NSWSC 1110
Decision Date: 2 October 2009

CaseChat Overview and Summary

In the case of Short v Crawley, the plaintiff sought to enforce consent orders against the defendant. The consent orders included provisions for a stay of execution until all appeals were concluded and for the provision of security. After several appeals, many grounds were withdrawn, leading the plaintiff to apply to vary the consent orders. The plaintiff sought permission to execute judgments that were no longer being challenged and to reduce the bank guarantee provided. The court was required to determine if it had the jurisdiction to vary the consent orders under these circumstances and, if so, whether such variation should be granted.

The court considered whether it retained the jurisdiction to vary consent orders after some grounds of appeal had been withdrawn. It was necessary to examine the principles governing the variation of consent orders, particularly in light of the fact that the orders were intended to remain in effect until all appeals were resolved. The court also had to assess whether the circumstances warranted an exercise of its discretion to allow the plaintiff to reduce their bank guarantee, given the changes in the scope of the appeals.

The court held that it had the jurisdiction to vary the consent orders to permit the enforcement of judgments that were no longer challenged and to allow the plaintiff to reduce their bank guarantee. The court found that the withdrawal of several grounds of appeal altered the landscape of the case, making it appropriate to adjust the orders to reflect the current state of the litigation. The court exercised its discretion in favour of the plaintiff, permitting the execution of judgments that were no longer contested and reducing the bank guarantee. This decision balanced the need to finalise aspects of the litigation with the overarching goal of achieving a just outcome.

The court's final orders permitted the plaintiff to execute judgments that were no longer being challenged and allowed a reduction in the bank guarantee provided. This decision effectively brought closure to certain parts of the litigation, facilitating the final resolution of the disputes. The court's ruling provided clarity on the jurisdiction to vary consent orders under the circumstances presented and offered a practical resolution to the issues at hand.

Orders