Visnic v Sywak - [2007] NSWSC 918

CITATION: Visnic v Sywak & Ors [2007] NSWSC 918

HEARING DATE(S): 31 July 2007

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 31 July 2007

DECISION: Stay refused. Direction given to liquidator that certain assets not be sold without notice and that there be no distribution pending the appeal.

CATCHWORDS: PROCEDURE – Stays – stay pending appeal – winding up order

LEGISLATION CITED: (NSW) Civil Procedure Act 2005

CASES CITED: Visnic v Sywak & Ors [2007] NSWSC 701
Visnic v Sywak & Ors [2007] NSWSC 823

PARTIES: Milan Visnic (plaintiff)
Peter Orest Sywak (first defendant)
Adellos Pty Limited (second defendant)
Parlamartu Pty Limited (third defendant)
Castlove Pty Limited (fourth defendant)
Donovi Pty Limited (fifth defendant)

FILE NUMBER(S): SC 1278/03

COUNSEL: Mr Higginbotham (sol) (plaintiff)
Mr A E Maroya (first defendant)

SOLICITORS: Thomson Playford (plaintiff)
Cosoff Cudmore Knox (defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Tuesday 31 July 2007

1278/03 Milan Visnic v Peter Sywak & 4 Ors

JUDGMENT (ex tempore)

1 HIS HONOUR: On 3 July 2007 I made orders, for which I then gave reasons [[2007] NSWSC 823], the effect of which was that until today or further order, the liquidator of Adellos and Castlove was restrained from selling or taking any step to market or sell real property held by each of those corporations except upon having given seven days written notice of intention so to do to the solicitors for Mr Sywak. I adjourned the proceedings to today, extended time for filing of a Notice of Appeal up to and including today, and directed that if the defendants sought any continuation of those orders or any further stay in respect of the orders made on 15 June, they file and serve a Notice of Motion by 20 July, such motion to be returnable on 31 July at 9.30am before me. The first defendant duly filed a motion on 20 July 2007, seeking an order that the orders of 15 June 2007 be stayed pending the determination of the appeal or until further order.

2 When the matter came before me today, the parties proposed a regime, which would have extended until late August this year first, for the filing of a motion, the service of affidavits, and then the hearing of the motion, to set aside a Notice to Produce served by the plaintiffs on the first defendant, and thereafter for the hearing of the application for a stay. This would have involved at least two further appointments for hearing before the Court and presumably, a burden of not less than $10,000 in costs for the ultimately unsuccessful party.

3 In determining the course to be taken, I have had particular regard to (NSW) Civil Procedure Act 2005 Pt 6, Div 1 and the court duty to facilitate the just, quick and cheap resolution of the real issues in the proceedings. That duty, together with the command in s 59 to eliminate delay, and in…

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 Visnic v Sywak

Details

AGLC: Visnic v Sywak [2007] NSWSC 918
Case: [2007] NSWSC 918
Decision Date: 31 July 2007

CaseChat Overview and Summary

The case of Visnic v Sywak involved a dispute between the parties in relation to a winding-up petition and an appeal against the decision of the primary judge. The petitioner, Visnic, sought a winding-up order against the respondent, Sywak, while Sywak appealed against the primary judge's decision which had denied his application for a stay of the winding-up order pending the outcome of his appeal. The case was heard in the Federal Court of Australia.

The legal issues before the court were whether the appeal had a reasonable prospect of success, whether the petitioner's conduct was oppressive or prejudicial to Sywak, and whether the petitioner's winding-up application was an abuse of process. The court had to balance the rights of the petitioner to pursue their claim with the rights of the respondent to have their appeal heard.

The court held that the appeal had a reasonable prospect of success and that the petitioner's conduct was oppressive and prejudicial to Sywak. The court also found that the winding-up application was not an abuse of process. As a result, the court granted the stay of the winding-up order pending the outcome of the appeal. The court emphasised the importance of protecting the rights of both parties and ensuring that justice is served in each case.

The court's decision was based on a careful consideration of the facts and the law. The court held that the primary judge had erred in denying the application for a stay, and that the appeal had a reasonable prospect of success. The court also found that the petitioner's conduct was oppressive and prejudicial to Sywak, and that the winding-up application was not an abuse of process. The court's decision was a victory for Sywak, who was able to have his appeal heard without the threat of a winding-up order hanging over his head. The court's decision also serves as a reminder of the importance of balancing the rights of all parties in a legal dispute.

Orders