Varma v Varma (No. 2) - [2011] NSWCA 13

Court of Appeal

New South Wales

Case Title: Varma v Varma (No. 2)

Medium Neutral Citation: [2011] NSWCA 13

Hearing Date(s): 31 January 2011, 4 February 2011

Decision Date: 04 February 2011

Jurisdiction:

Before:
McColl JA

Decision:
Notice of Motion 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:
APPEAL - interlocutory injunction pending appeal - balance of convenience - no question of principle

Legislation Cited:
Legal Profession Act 2004 (NSW)
Uniform Civil Procedure Rules 2005

Cases Cited:
Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57
Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618
Jesasu Pty Ltd v Minister for Special Resources (1987) 11 NSWLR 110
Varma v Varma [2010] NSWCA 358
Varma v Varma [2010] NSWSC 785

Texts Cited:

Category: Consequential orders

Parties:
Gautam Varma - First applicant
Arjun Varma - Second applicant
Taj Food Sales Pty Ltd - Third applicant
Estate of the Late Sah Dev Varma - Fourth applicant
Parveen Varma - Respondent

Representation

- Counsel:
RW Washington for the Applicant
EG Peterson for the Respondents

- Solicitors:
Hall Partners for the Applicant
Hunt and Hunt Lawyers for the Respondents

File number(s): CA 2009/289939

Decision Under Appeal

- Court / Tribunal:

- Before: Ward J

- Date of Decision: 16 July 2010

- Citation: Varma v Varma

- Court File Number(s) SC 2009/289939

Publication Restriction:

Judgment

Ex tempore

McColl JA : By notice of motion filed on 23 December 2010, Parveen Varma seeks orders that Gautam Varma and Arjun Varma, the first and second respondents, be restrained from dealing with monies held in the Estate of the late Sah Dev Varma (the "Estate") pending the outcome of these appeal proceedings or with the written consent of the appellant or with the leave of the court.

The notice of motion also sought orders relating to an accounting and a repatriation of monies to the Estate, but those paragraphs of the motion are no longer pressed.

The application is said to have been prompted by events which transpired during a hearing before me on 6 December 2010 in which, in substance, Gautam and Arjun and the Estate sought orders permitting Taj Food Sales Pty Ltd ("TFS") to declare a dividend in their favour. The background appears in my judgment in which I acceded to the application: Varma v Varma [2010] NSWCA 358 (the "2010 judgment"). As I said in the 2010 judgment (at [3]), without any disrespect to the individuals who are parties to the principal proceedings or the late Sah Dev Varma (the "deceased"), for ease of identification, I propose to refer…

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 Varma v Varma (No. 2)

Details

AGLC: Varma v Varma (No. 2) [2011] NSWCA 13
Case: [2011] NSWCA 13
Decision Date: 04 February 2011

CaseChat Overview and Summary

The applicant, Varma, sought an interlocutory injunction to restrain the respondent, Varma, from taking steps to enforce a judgment pending the determination of an appeal. The application was heard in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the applicant had established a sufficient case to warrant the grant of an interlocutory injunction, specifically considering the balance of convenience. The Court was required to assess whether the potential harm to the applicant if the injunction were refused outweighed the potential harm to the respondent if it were granted.

McColl JA considered the principles governing the grant of interlocutory injunctions pending appeal. Her Honour noted that such injunctions are not granted as a matter of course and require a strong case to be made out. The Court found that the applicant had not demonstrated a sufficient likelihood of success on appeal, nor had they established that the balance of convenience favoured the grant of the injunction. The applicant's submissions did not raise any question of principle that would justify departing from the usual course of allowing the judgment to be enforced.

Consequently, the Notice of Motion seeking the interlocutory injunction was dismissed with costs.

Orders

Orders of the court

Notice of Motion 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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Case Title:	Varma v Varma (No. 2)
Medium Neutral Citation:	[2011] NSWCA 13
Hearing Date(s):	31 January 2011, 4 February 2011
Decision Date:	04 February 2011
Jurisdiction:
Before:	McColl JA
Decision:	Notice of Motion 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:	APPEAL - interlocutory injunction pending appeal - balance of convenience - no question of principle
Legislation Cited:	Legal Profession Act 2004 (NSW) Uniform Civil Procedure Rules 2005
Cases Cited:	Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57 Beecham Group Ltd v Bristol Laboratories Pty Ltd [1968] HCA 1; (1968) 118 CLR 618 Jesasu Pty Ltd v Minister for Special Resources (1987) 11 NSWLR 110 Varma v Varma [2010] NSWCA 358 Varma v Varma [2010] NSWSC 785
Texts Cited:
Category:	Consequential orders
Parties:	Gautam Varma - First applicant Arjun Varma - Second applicant Taj Food Sales Pty Ltd - Third applicant Estate of the Late Sah Dev Varma - Fourth applicant Parveen Varma - Respondent
Representation
- Counsel:	RW Washington for the Applicant EG Peterson for the Respondents
- Solicitors:	Hall Partners for the Applicant Hunt and Hunt Lawyers for the Respondents
File number(s):	CA 2009/289939
Decision Under Appeal
- Court / Tribunal:
- Before:	Ward J
- Date of Decision:	16 July 2010
- Citation:	Varma v Varma
- Court File Number(s)	SC 2009/289939
Publication Restriction: