Soo v Fisher and Ors trading as Fisher Cartwright Berriman

[2009] NSWCA 393

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Soo v Fisher and Ors trading as Fisher Cartwright Berriman [2009] NSWCA 393

FILE NUMBER(S):
40401/09

HEARING DATE(S):
30 November 2009

JUDGMENT DATE:
30 November 2009

EX TEMPORE DATE:
30 November 2009

PARTIES:
Brendon Robert SOO  (appellant/respondent on application) 
William K Fisher, Berriman consulting Pty Ltd and Greyridge Holdings Pty Ltd (a firm) trading as FISHER CARTWRIGHT BERRIMAN  (respondent/applicant) 

JUDGMENT OF:
Hodgson JA     

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
SC 20058/06

LOWER COURT JUDICIAL OFFICER:
Smart AJ

LOWER COURT DATE OF DECISION:
16 July 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
S v FCB [2009] NSWSC 665

COUNSEL:
G CURTIN  (respondent/applicant) 
B SHIELDS  (appellant/respondent on the application) 

SOLICITORS:
Middletons  (respondent/applicant) 
Barwick Legal  (appellant/respondent on the application) 

CATCHWORDS:
PROCEDURE – Stay pending appeal – Whether leave to cross-appeal necessary where there is an appeal seeking damages substantially in excess of $100,000. 

LEGISLATION CITED:

CATEGORY:
Procedural and other rulings

CASES CITED:

TEXTS CITED:

DECISION:
I make orders 1 and 4 of the notice of motion, filed 19 November 2009, deleting the words "or separately therefrom" from order 4 (e), and deleting also 4(a).  [Orders set out below for ease of reference: 
1.  That execution upon the orders of his Honour Acting Justice Smart of 16 July 2009 and 29 July 2009 be stayed until further order of the Court.
…..
4. That the parties be relieved of compliance with the UCPR regarding the application for leave to cross-appeal and in lieu thereof:
a)  .....
b)  the respondent include the applicants' cross-summons for leave to cross-appeal and draft notice of cross-appeal in the Red Book;
c)  the applicants file and serve their Summary of Argument within 21 days of service of the Red, Blue and Black Books by the respondent;
d)  the respondent file and serve his Response within 21 days of service of the applicants' Summary of Argument;
e)  thereafter, the cross-summons for leave to cross-appeal be heard concurrently with the Appeal filed 29 October 2009 [.....] utilising the Red, Blue and Black Books in lieu of the White Folder.] 
I order that the costs of this motion be costs in the application for leave to cross-appeal and the cross-appeal, if leave is granted or found to be unnecessary.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40401/09
SC 20058/06

HODGSON JA

Monday, 30 NOVEMBER 2009

Brendon Robert SOO v William K Fisher, Berriman Consulting Pty Ltd (ACN 080 078 829) and Greyridge Holdings Pty Ltd (ACN 065 206 733) (a firm) trading as FISHER CARTWRIGHT BERRIMAN

Judgment

1. HODGSON JA:  I am dealing with an application to stay orders made by His Honour Acting Justice Smart in July 2009.  On behalf of the applicant, it is put that there are reasonable grounds for the cross-appeal and that there is a risk that if the money is paid over it would not be recoverable.

2. Mr Shields for the respondent to this motion has submitted that the cross-appeal is sought to be brought on findings of fact, in relation to which there is very little prospect that the decision of the primary judge would be overturned.  There is force in that submission; but it does seem to me that the matters referred to by Mr Curtin do indicate that there is an issue to be determined on the cross-appeal that I could not on this application consider not to be arguable.

3. On the question whether there is a risk that the amount would not be recoverable, the affidavit of the respondent to this motion does suggest quite substantial assets in his family.  As far as his own position is concerned, he says he has two motor vehicles to which he attributes quite substantial value, and also personal effects, and he is earning income.  However, I must say that I am concerned that in his solicitor's letter he claimed a interest worth about $100,000 in a company; and it is apparent from the documents that the company is a trustee company for a family trust, and there is no evidence as to the terms of that trust.  The circumstance that there are substantial assets available to other family members is not a matter that I would consider significantly to reduce the risk that money might be irrecoverable.  On balance I think a case is made out for a stay.

4. The applicant for the stay has proposed an alternative of paying money into an account in the joint names of the solicitors or paying into court.  Having regard to the circumstance that the applicant is insured through Law Cover, I don't think that is necessary.

5. The motion also seeks directions having the effect of dispensing with a white book.  I think it is appropriate to give those directions.  In circumstances where the respondent to this motion is an appellant seeking about half a million dollars in damages on appeal, it seems to me arguable that leave to appeal for the applicant’s cross-appeal may not be necessary in any event.  I think it would be convenient to dispense with a white book and give directions with a view to having both the appeal and cross-appeal dealt with together, without the necessity for any separate hearing of the application for leave to cross appeal.

6. For those reasons, I make orders 1 and 4 of the notice of motion, filed 19 November 2009, deleting the words "or separately therefrom" from order 4(e), and deleting also 4(a).

7. I order that the costs of this motion be costs in the application for leave to cross-appeal and the cross-appeal, if leave is granted or found to be unnecessary.

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LAST UPDATED:
2 December 2009