The Cleaning Doctor NSW Pty Ltd v Fonseca

The proceeding involved an appeal by The Cleaning Doctor NSW Pty Ltd and another party (the appellants) against orders made in the Equity Division. The dispute concerned applications for a stay of execution and security for costs. The Honourable Justice Leeming JA of the Court of Appeal of New South Wales considered these applications.

The primary legal issues before the court were whether to continue the stay of execution of the primary orders pending the appeal, and whether to order the appellants to provide security for the respondents' costs of the appeal. The respondents sought substantial security, arguing their costs in opposing the stay and supporting the security application exceeded their costs of defending the appeal itself, and also sought to divide the appeal into separate appeals for each appellant.

Justice Leeming JA reasoned that a stay of execution should be continued, noting the provision of the usual undertaking by the appellants and the fact that the appeal was to be heard in the near future. His Honour observed that the respondents had failed to apply to vary the interlocutory regime over the preceding two years despite changed circumstances. Regarding security for costs, his Honour found the respondents' submission to be misconceived, noting their substantial lack of success in opposing the stay application. Consequently, security was ordered in the amount proffered by the appellants.

The court ordered that the operation of certain previous orders be stayed until further order, contingent on the filing of a notice of appeal. The appellants were directed to pay $55,000 into court as security for the respondents' costs of the appeal within 14 days, with the appeal to be stayed if this order was not complied with. The respondents were ordered to file their written submissions by 19 August 2022, and the appeal was listed for 24 August 2022 with a view to allocating a hearing date. The appellants were awarded costs of both motions.