Court of Appeal
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: Taheri v Vitek [2013] NSWCA 438 Hearing dates: 9/12/2013 and 11/12/2013 Decision date: 11 December 2013 Before: Leeming JA Decision: (1) I note that the existing undertaking in paragraph 1 of the short minutes of order dated 19 June 2013 continues, but is subject to the following orders and undertakings.
(2) The applicant undertakes to the Court that she will prosecute with due despatch proceedings 2013/200165 and 2013/364156 and will to that end seek an order that the proceeding be expedited.
(3) The applicant undertakes to the Court that she will not dispose of, alienate, charge or encumber her assets until the determination of these appeals other than to meet:
(a) her ordinary business expenses (including tax liabilities);
(b) her ordinary living costs and expenses; and
(c) her legal costs of and incidental to proceedings 2013/200165, proceedings 2013/364156, proceedings 2010/328982 and proceedings 2005/258339.
(4) The applicant charges (subject to existing encumbrances) the property contained in folio identifier 2/1110862 (being the land known as 81 xxxxxx Seaforth) with her liability to the respondents pursuant to the orders made by Bergin CJ in Equity and Rein J the subject of the appeals.
(5) The applicant undertakes to the Court to take reasonable steps to place on the market for sale the properties contained in folio identifiers 259/SP65785 and 323/SP65785 (being the properties known, respectively, as xxxxxx George St, Sydney and xxxxxx George St, Sydney) by 1 March 2014 and will pay into Court the net proceeds of those sales at settlement.
(6) Order that the stay ordered by Rein J 29 November 2013, extended by me on 9 December 2013, be further extended until further order.
(7) Make no order as to costs on the basis that the costs of this application will be costs in the appeal.
(8) Liberty to both parties to apply to me by email to my associate on 48 hours' notice.
(9) Direct the applicant to file and serve her submissions and a red book by 31 January 2014.
(10) Order that these proceedings be heard at the same time as proceedings 2013/200165.
(11) Order that the hearing of these appeals be expedited.
(12) Stand over both appeals to the Registrar's list on 18 December 2013.
[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 - stay pending appeal - whether appeal bound to fail - balance of convenience - where limited information about appellant's liabilities - offer to charge appellant's home to secure judgment debts - offer to attempt to sell specified real property and pay proceeds into Court -…
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- AGLC
- Taheri v Vitek [2013] NSWCA 438
- Case
- [2013] NSWCA 438
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Court was whether the applicant had demonstrated a sufficient basis to warrant a stay of the judgment debts pending the determination of her appeals. This involved considering whether the appeals were likely to fail and, if not, assessing the balance of convenience between the parties, particularly in light of the applicant's financial position and the respondents' entitlement to enforce their judgments.
Leeming JA granted the stay on terms, applying principles relating to stays pending appeal. The Court noted the limited information available regarding the applicant's liabilities but considered the applicant's undertakings and proposed charges over her assets. Specifically, the applicant undertook to prosecute her appeals with due despatch, not to dissipate her assets except for ordinary expenses and legal costs, to charge her property at 81 Seaforth with her liability to the respondents, and to take reasonable steps to sell two properties on George Street, Sydney, paying the net proceeds into Court. The existing stay was further extended, and the appeals were ordered to be heard expeditiously and together.
Orders
Orders of the court
(1) I note that the existing undertaking in paragraph 1 of the short minutes of order dated 19 June 2013 continues, but is subject to the following orders and undertakings.
(2) The applicant undertakes to the Court that she will prosecute with due despatch proceedings 2013/200165 and 2013/364156 and will to that end seek an order that the proceeding be expedited.
(3) The applicant undertakes to the Court that she will not dispose of, alienate, charge or encumber her assets until the determination of these appeals other than to meet:
(a) her ordinary business expenses (including tax liabilities);
(b) her ordinary living costs and expenses; and
(c) her legal costs of and incidental to proceedings 2013/200165, proceedings 2013/364156, proceedings 2010/328982 and proceedings 2005/258339.
(4) The applicant charges (subject to existing encumbrances) the property contained in folio identifier 2/1110862 (being the land known as 81 xxxxxx Seaforth) with her liability to the respondents pursuant to the orders made by Bergin CJ in Equity and Rein J the subject of the appeals.
(5) The applicant undertakes to the Court to take reasonable steps to place on the market for sale the properties contained in folio identifiers 259/SP65785 and 323/SP65785 (being the properties known, respectively, as xxxxxx George St, Sydney and xxxxxx George St, Sydney) by 1 March 2014 and will pay into Court the net proceeds of those sales at settlement.
(6) Order that the stay ordered by Rein J 29 November 2013, extended by me on 9 December 2013, be further extended until further order.
(7) Make no order as to costs on the basis that the costs of this application will be costs in the appeal.
(8) Liberty to both parties to apply to me by email to my associate on 48 hours' notice.
(9) Direct the applicant to file and serve her submissions and a red book by 31 January 2014.
(10) Order that these proceedings be heard at the same time as proceedings 2013/200165.
(11) Order that the hearing of these appeals be expedited.
(12) Stand over both appeals to the Registrar's list on 18 December 2013.
[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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