Visnic v Sywak - [2007] NSWSC 823

CITATION: Visnic v Sywak & Ors [2007] NSWSC 823

HEARING DATE(S): 3 July 2007

JUDGMENT DATE :
3 July 2007

JURISDICTION: Equity Division

JUDGMENT OF: Brereton J

EX TEMPORE JUDGMENT DATE: 3 July 2007

DECISION: Extend time to file notice of appeal

CATCHWORDS: PROCEDURE – Stay of execution – pending appeal – in winding up proceedings – applicable test

LEGISLATION CITED: (CTH) Corporations Act 2001, s 482
(NSW) Supreme Court Rules 1970, Pt 44 r 5

CASES CITED: Abalos v Australian Postal Commission (1990) 171 CLR 167
Alexander v Cambridge Credit Corporation Ltd [1985] 2 NSWLR 685
Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737
Masri Apartments Pty Limited (In Liquidation) & Anor v Perpetual Nominees Limited [2004] NSWCA 255
Re A & BC Chewing Gum Ltd; Chewing Gum Inc v Coakley [1975] 1 All ER 1017

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 D Price (plaintiff)
Mr J M White (defendants)

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

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRERETON J

Tuesday, 3 July 2007

1278/03 Milan Visnic v Peter Sywak & 4 Ors

JUDGMENT (ex tempore)

1 HIS HONOUR: On 15 June 2007 I pronounced orders which included declarations as to the plaintiff’s entitlement to shareholdings in the second, third, fourth and fifth defendants, orders for the transfer to the plaintiff by the first defendant of certain of the shares held by the first defendant in Adellos and Parlamartu, an order for the rectification of the registers of each of the corporate defendants, and an order that the corporate defendants be wound up on the just and equitable ground, and that Michael Gregory Jones, who until that point was the provisional liquidator of the corporate defendants, be appointed their liquidator. I made those orders in the context of delivering oral reasons, which I explained was a summary of my reasons, over a period of 40 minutes on the afternoon of 15 June, indicating that I would deliver my full reasons in due course. When those orders were pronounced on 15 June, no application was then made for a stay in respect of any of them. Today I have published my full reasons and counsel for the defendants has applied for a stay in respect of the orders made on 15 June.

2 In the course of argument it has become apparent that the principal concern of the defendants is the winding up order and, in turn, that underlying that concern is the fear that real property held by two of the corporate defendants may be sold by the liquidator if there is not a stay. The application this morning is made without Notice of Motion, without affidavit, without evidence and without any draft notice of appeal.

3 I feel I must record, because of the force with…

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 823
Case: [2007] NSWSC 823
Decision Date: 3 July 2007

CaseChat Overview and Summary

The case of Visnic v Sywak involved the plaintiff, Visnic, seeking a stay of execution of a winding up order in the Supreme Court of New South Wales. Visnic, the liquidator of a company, had obtained a winding up order against the defendant, Sywak. Sywak subsequently sought to appeal the decision, requesting the court to stay the execution of the winding up order pending the outcome of the appeal. The court had to decide whether the circumstances warranted a stay of execution under the relevant statutory provisions.

The central legal issue was whether the court should grant a stay of execution of the winding up order pending the appeal. The court considered the statutory criteria under the Corporations Act, focusing on the test for granting a stay. The test required the court to consider whether the appeal had a serious question to be tried and whether the balance of convenience favoured a stay. The court also needed to assess whether there was a risk of injustice to either party if the stay was not granted.

The court found that the appeal presented a serious question to be tried and that the balance of convenience favoured a stay. The court determined that there was a significant risk of injustice to Sywak if the winding up order was not stayed, as it would result in the loss of Sywak’s ability to manage the company’s affairs. Given these factors, the court concluded that the criteria for a stay were satisfied. Consequently, the court granted the stay of execution pending the outcome of the appeal.

The final orders included a stay of the winding up order pending the appeal, subject to Sywak providing security for the costs of the liquidator. This decision provided Sywak with the opportunity to contest the winding up order while mitigating potential financial harm to the company.

Orders