Siewert v Aquatic Air Pty Ltd

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Siewert v Aquatic Air Pty Ltd [2014] NSWCA 384

Hearing dates:

28/10/2014

Decision date:

28 October 2014

Before:

Emmett JA; Sackville AJA

Decision:

Application for leave to appeal refused with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PRACTICE AND PROCEDURE - appeals - application for leave to appeal from interlocutory decision - whether the primary judge erred in the formulation of an interlocutory regime relating to a property owned by the respondent

Legislation Cited:

Nil

Cases Cited:

Young v Hones (No 2) [2014] NSWCA 338

Category:

Principal judgment

Parties:

Dieter Siewert and Lieselotte Siewert (Applicants)
Aquatic Air Pty Ltd (Respondent)

Representation:

Counsel:
B De Buse (Applicants)
DK Raphael with NJ Kirby (Respondent)
Solicitors:
Marsdens Law Group (Applicants)
Gibsons Lawyers (Respondent)

File Number(s):

2014/249569

Publication restriction:

Nil

 Decision under appeal 

Citation:

AT Air Group Pty Ltd v Dieter Siewert (No 3) [2014] NSWSC 1129

Date of Decision:

2014-07-31 00:00:00

Before:

Brereton J

File Number(s):

2012/169096

Judgment

1. THE COURT: By summons filed on 25 October 2014, Dieter and Lieselotte Siewert (together, the Siewerts) have applied for leave to appeal from orders made in the Equity Division on 31 July 2014 by Brereton J. The orders relate to an interlocutory regime concerning ownership of an apartment situated in Mosman (the Property).

1. The Property is presently owned by the respondent, Aquatic Air Pty Ltd (Aquatic). The dispute between the Siewerts and Aquatic arises out of arrangements relating to a share sale agreement made between the Siewerts as vendors and AT Air Group Pty Ltd (AT Air) as purchaser in July 2011 (the Share Sale Agreement). The Share Sale Agreement required the payment by AT Air of the purchase price by instalments. As at November 2011, AT Air was in default in the payment of instalments of the purchase price in accordance with the Share Sale Agreement.

1. On 25 November 2011, the Siewerts and AT Air entered into a security agreement (the Security Agreement), to which Aquatic, Wingaway Air Pty Ltd (Wingaway) and Heron Airlines Travel Pty Ltd (Heron) were also parties. The Security Agreement recorded that AT Air had agreed to mortgage its shares in Wingaway and Heron to the Siewerts as security for payment of the balance of the purchase price. In addition, Wingaway and Heron agreed to guarantee the obligations of AT Air with respect to the payment of the purchase price.

1. At the time of the Security Agreement, Aquatic was the owner of the Property as the sole trustee of the Aquatic Trust. By the Security Agreement, Aquatic granted an irrevocable power of attorney to the Siewerts…