Walker v Lakatoi Universal Pty Limited - [2000] NSWCA 318

NEW SOUTH WALES COURT OF APPEAL

CITATION: Walker v Lakatoi Universal Pty Limited [2000] NSWCA 318

FILE NUMBER(S):
40526/00
40527/00

HEARING DATE(S): 30 October 2000

JUDGMENT DATE: 30/10/2000

PARTIES:
Langley Alexander Walker
Walker Consolidated Investments Pty Limited
Lakatoi Universal Pty Limited

JUDGMENT OF: Meagher JA Powell JA Beazley JA

LOWER COURT JURISDICTION: Court of Appeal Single Judge

LOWER COURT FILE NUMBER(S):

LOWER COURT JUDICIAL OFFICER: Stein JA

COUNSEL:
Mr Walker: B McClintockSC/R S Hollo
Walker Consolidated: R Powell
Lakatoi: R Ellicott QC

SOLICITORS:
Mr Walker: Minter Ellison
Walker Consolidated: Perkes & Stone
Lakatoi: Gye Associates

CATCHWORDS:
review of a stay
whether discretion miscarried
security for judgment debt

LEGISLATION CITED:

DECISION:
Application for review dismissed with costs

JUDGMENT:

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40526/00
CA 40527/00

MEAGHER JA
POWELL JA
BEAZLEY JA

Monday, 30 October 2000

Langley Alexander WALKER v LAKATOI UNIVERSAL PTY LIMITED (ACN 000 985 442) & 3 ORS
WALKER CONSOLIDATED INVESTMENTS PTY LIMITED (ACN 002 069 678) v LAKATOI UNIVERSAL PTY LIMITED (ACN 000 985 442) & 3 ORS
JUDGMENT

BEAZLEY JA: This is an application to review the orders of Stein JA made on 1 August 2000 staying the execution of judgment in each of the proceedings subject of the appeals.
To succeed on the application for review it must be demonstrated that his Honour’s discretion miscarried. It was submitted that his Honour’s discretion in this case miscarried because his Honour failed to take into account a relevant consideration, namely, whether the respondents to the appeal (the applicants for review) would be able to repay the judgment debt should the appellants be successful on the appeal.
To determine whether this ground is made out, it is necessary in the first instance to briefly put matters into context.
The appellant in each appeal was found to be jointly and severally liable to the respondents in the sum of $12 million for breach of contracts relating to a joint venture for the development of land at Helensburgh. Before Stein J the respondents conceded that there was an arguable case on the appeals. The concession was made in circumstances where the length of the trial judge’s judgment was such that it was not feasible for Stein JA to make a determination of that issue on the application for a stay.
There having been a concession that there was an arguable ground of appeal, the issue left for determination by Stein JA was whether, if the judgment monies were paid over, they could be repaid.
His Honour did not expressly make any finding in that respect. Rather he proceeded as follows. He referred to the concession that there was an arguable case, and noting that he was not in a position to make any real assessment of the strength of the appeals, he stated that he was able to conclude that the appeals were arguable. Accordingly, the first threshold on a stay application had been met. His Honour then referred to the matters of basic…

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.

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Details

Case: [2000] NSWCA 318
Decision Date: 30 October 2000

CaseChat Overview and Summary

The application concerned a review of a decision to grant a stay of execution of a judgment debt. The applicant, Walker, sought to have this stay set aside. The respondent was Lakatoi Universal Pty Limited.

The primary legal issue before the court was whether the discretion exercised by the primary judge in granting the stay of execution had miscarried. This involved an assessment of whether the conditions for granting such a stay had been met, particularly concerning the provision of security for the judgment debt.

The court considered the principles governing the grant of a stay of execution, which generally require the applicant to demonstrate exceptional circumstances and to provide security for the judgment debt. The court found that the primary judge had properly considered the relevant factors and had not erred in exercising their discretion. The applicant had failed to demonstrate that the primary judge's decision was demonstrably wrong or unjust.

The application for review was dismissed, and the applicant was ordered to pay the costs of the proceedings.

Orders

Orders of the court

Application for review dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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