Taheri v Vitek - [2014] NSWCA 157

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Taheri v Vitek [2014] NSWCA 157
Hearing dates: 13 May 2014
Decision date: 13 May 2014
Before: Leeming JA
Decision:
The notice of motion dated 8 May 2014 is dismissed 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 - terms of stay of execution pending appeal - application to vary charge over appellant's property - application dismissed
Category: Interlocutory applications
Parties: Ms Veeda Taheri (Appellant)
Mr Peter Vitek (First Respondent)
Mrs Shoshana Vitek (Second Respondent)
Representation: Counsel:
MW Sneddon (Appellant/Respondent on the motion)
D Pritchard SC (Respondent/Applicant on the motion)
Solicitors:
McLaughlin & Riordan (Appellant)
Farrar Lawyers (Respondent)

File Number(s): 2013/364156
Decision under appeal

Citation:

[2013] NSWSC 1764

Date of Decision:

2013-11-22 00:00:00

Before:

Rein J

File Number(s):

2005/258339

Judgment

LEEMING JA: Before the court, pursuant to liberty to apply granted by me on 11 December 2013, is the application by Mr and Mrs Vitek, the respondents to an appeal listed for hearing in 15 days time, for, in essence, an order requiring the respondent/appellant, Ms Taheri, to execute a charge in the form annexed and marked A. The substance of the application is for orders placing the Viteks in the position of registered legal chargees in respect of land owned by Ms Taheri. I have been taken to correspondence between the parties commencing shortly after 11 December 2013 where that position has been propounded by the Viteks and resisted by Ms Taheri.

At first I was disposed to place relatively high regard on a discretionary aspect of this application, namely, that the status quo established by the regime put in place by me on 11 December 2013, for better or worse, has prevailed now for in excess of five months and for all but a fortnight prior to the hearing of the appeal. On reflection, the likelihood is that an interlocutory regime will need to remain in place for a period of time after the hearing of the appeal and it would, in those circumstances, be wrong to place undue weight on the relatively small period of time remaining. In any event, for the reasons to which I am about to come, it is not necessary for me to do so.

The orders made on 11 December 2013 in substance reflected an acceptance by me of what had been proffered on behalf of Ms Taheri as the price of a continued stay of execution upon the final judgment obtained by the Viteks which was challenged by Ms Taheri's appeal. Orders two and three on that date reflected (verbatim) undertakings…

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 Taheri v Vitek

Details

AGLC: Taheri v Vitek [2014] NSWCA 157
Case: [2014] NSWCA 157
Decision Date: 13 May 2014

CaseChat Overview and Summary

In *Taheri v Vitek*, the appellant sought to vary a charge over their property that had been imposed as a condition of a stay of execution pending appeal. The application was heard by Leeming JA in the Court of Appeal of New South Wales.

The central legal issue before the Court was whether the existing terms of the stay of execution, which included the charge over the appellant's property, should be varied. This involved considering the court's power to vary or set aside its own orders and the principles governing such applications, particularly in the context of ensuring the effectiveness of a stay pending appeal.

Leeming JA dismissed the application, implicitly finding that the appellant had not demonstrated sufficient grounds to warrant a variation of the existing order. The Court's decision underscores the finality of orders once entered, and the limited circumstances in which they may be set aside or varied, particularly after the expiry of the usual time limits for such applications under the Uniform Civil Procedure Rules 2005.

The notice of motion dated 8 May 2014 was dismissed with costs.

Orders

Orders of the court

The notice of motion dated 8 May 2014 is dismissed 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.]

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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Medium Neutral Citation:	Taheri v Vitek [2014] NSWCA 157
Hearing dates:	13 May 2014
Decision date:	13 May 2014
Before:	Leeming JA
Decision:	The notice of motion dated 8 May 2014 is dismissed 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 - terms of stay of execution pending appeal - application to vary charge over appellant's property - application dismissed
Category:	Interlocutory applications
Parties:	Ms Veeda Taheri (Appellant) Mr Peter Vitek (First Respondent) Mrs Shoshana Vitek (Second Respondent)
Representation:	Counsel: MW Sneddon (Appellant/Respondent on the motion) D Pritchard SC (Respondent/Applicant on the motion) Solicitors: McLaughlin & Riordan (Appellant) Farrar Lawyers (Respondent)
File Number(s):	2013/364156
Decision under appeal	Citation: [2013] NSWSC 1764 Date of Decision: 2013-11-22 00:00:00 Before: Rein J File Number(s): 2005/258339