Tyndall v ACN 062 895 774 Pty Ltd

NEW SOUTH WALES COURT OF APPEAL

CITATION:      Tyndall v ACN 062 895 774 Pty Ltd  [2007]  NSWCA 102

FILE NUMBER(S):
40095 of 2006

HEARING DATE(S):            23 April 2007

EX TEMPORE DATE:        23 April 2007

PARTIES:
Dianne Tyndall - Claimant/Respondent
ACN 062 895 774 Pty Ltd - Opponent/Appellant

JUDGMENT OF:      McColl JA     

LOWER COURT JURISDICTION: Supreme Court - Common Law Division

LOWER COURT FILE NUMBER(S):        SC 1110/2004

LOWER COURT JUDICIAL OFFICER:     Sully J

LOWER COURT DATE OF DECISION:    7 December 2005

LOWER COURT MEDIUM NEUTRAL CITATION:
[2005] NSWSC 1124

COUNSEL:
M Sahade - Claimant/Respondent
D J Durston - Opponent/Appellant

SOLICITORS:
Comino Prassas - Claimant/Respondent
Searle & Associates Lawyers - Opponent/Appellant

CATCHWORDS:
PROCEDURE – application for stay of judgment pending application for special leave to appeal to the High Court – applicable principles – relevance of prospects of success of application for special leave

LEGISLATION CITED:
De Facto Relationships Act 1984
Property (Relationships) Act 1984

CASES CITED:
ACN 062 895 774 Pty Ltd v Tyndall [2007] NSWCA 64
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Hewitt v Court [1983] HCA 7; (1983) 149 CLR 639
Minister for Local Government & Anor v South Sydney City Council (No 3) [2002] NSWCA 326
New South Wales Bar Association v Stevens (No 2) [2003] NSWCA 107

DECISION:
Notice of Motion dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT  
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40095/06

McCOLL JA

23 April 2007

Tyndall v ACN 062 895 774

Judgment – Ex Tempore

1. McCOLL JA:     This is an application by Dianne Tyndall seeking a stay of the orders of the Court of Appeal made on 27 March 2007, until such time as the claimant’s rights of appeal to the High Court have been exhausted.  She also seeks an order restraining the opponent from selling, disposing, encumbering, or otherwise dealing with the subject property at 4 Carlow Avenue, Killarney Heights until those rights of appeal rights have been exhausted, unless a debt represented by the judgment of this Court in proceedings number 1594 of 1998 is paid.

2. The facts relating to the application are fully set out in the judgment of this Court of 27 March 2007 referred to in the first prayer for relief: ACN 062 895 774 Pty Ltd v Tyndall [2007] NSWCA 64. They can be shortly stated for the purposes of this judgment by reference to the headnote.

3. The opponent is a company which was registered by a Mr Clee, the claimant’s former de facto partner.  It was the corporate entity through which he conducted a debt collecting business.  It also operated as the trustee of his property and superannuation fund.

4. In 1994 the claimant and Mr Clee, who were then living in a de facto relationship, selected the property referred to in the second prayer for relief at Killarney Heights as their home.  The opponent purchased it but it was subject to a one hundred per cent mortgage to the…