United Rural Enterprises v Lopmand

[2003] NSWSC 269

CITATION:	United Rural Enterprises v Lopmand [2003] NSWSC 269
HEARING DATE(S):	28 February 2003
JUDGMENT DATE:	28 February 2003
JURISDICTION:	Equity
JUDGMENT OF:	Campbell J
DECISION:	Stay granted
CATCHWORDS:	PRACTICE AND PROCEDURE - stay - no question of principle
PARTIES :	United Rural Enterprises Pty Limited (Plaintiff) Lopmand Pty Limited (First Defendant) Tracey John Lake (Second Defendant)
FILE NUMBER(S):	SC 4039/99
COUNSEL:	M Cashion SC; J White (Plaintiff) B DeBuse (Defendants)
SOLICITORS:	Kemp Strang (Plaintiff) McCooe Raves & Poole (Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EQUITY LIST

CAMPBELL J

FRIDAY 28 FEBRUARY 2003

4039/99 UNITED RURAL ENTERPRISES PTY LIMITED v LOPMAND PTY LIMITED & ORS

JUDGMENT – Ex tempore

1 HIS HONOUR: The first and second defendants apply for a stay of the judgment contained in order 1 of the orders which I have made today. Counsel for those defendants informs me that the defendants propose to appeal against the portion of my judgment which refused a winding up of Painten on the just and equitable ground. It is possible that the appeal might also extend somewhat wider. Counsel is uncertain about the precise ambit of the appeal because it was only in the course of hearing this morning that counsel for United Rural Enterprises Pty Ltd, on behalf of his client, elected to have United Rural Enterprises become a registered member of Painten, by requiring execution of a transfer of the Lopmand Share in Painten. That election affected the terms of Orders 4 and 5.

2 The judgment sum is one which is secured by equitable mortgage, referred to in paragraph 3 of the orders. While there is no precise valuation evidence, it is clear enough from evidence given at the trial that the Lopmand Share in Painten is an asset of some significant value.

3 If the winding up order had been made, its effect would have been to make that value available to the defendants, so that they could apply it in satisfaction of, or partial satisfaction of, the judgment debt. Hence, the first and second defendants submit, it would not be appropriate for execution of the judgment to take place until the Court of Appeal had decided whether I was right to refuse to wind up Painten.

4 The first and second defendants proffer to the court an undertaking to diligently pursue and prosecute any appeal.

5 When there is some unclarity about the scope of the proposed appeal, and when there is no draft Notice of Appeal available, it would not be appropriate to grant a stay which lasted all the time up to the determination of any appeal. A judge other than me should decide the prospects of success of the appeal, so far as such prospects are relevant to the grant of a stay. It seems to me that the appropriate course is to allow a stay until Tuesday 1 April 2003. Given that the Court of Appeal usually hears motions on a Monday, this should allow time for an appeal to be properly instituted, and for the Court of Appeal to decide the appropriateness of any further stay.

6 I order that execution of the judgment contained in paragraph 1 of the orders made earlier today, be stayed to and including 1 April 2003.

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Last Modified: 05/15/2003