CITATION: Short v Crawley (No. 42) [2009] NSWSC 1110 HEARING DATE(S): 1 and 2 October 2009
JUDGMENT DATE :
2 October 2009JURISDICTION: 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 44PARTIES: Roslyn Short as executrix of the estate of the late Warwick Gordon Short & Anor
v
Christopher Crawley & 9 OrsFILE NUMBER(S): SC 2824/98 COUNSEL: Plaintiffs: J T Gleeson SC with T M Thawley
Defendants: W G Muddle SCSOLICITORS: 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…
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- AGLC
- Short v Crawley (No 42) [2009] NSWSC 1110
- Case
- [2009] NSWSC 1110
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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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