White v Thompson - [2009] NSWSC 1266

CITATION: White v Thompson [2009] NSWSC 1266

HEARING DATE(S): 5 November 2009

JUDGMENT DATE :
6 November 2009

JURISDICTION: Equity

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 6 November 2009

DECISION: 1. In each proceeding, order that the notice of motion filed for the plaintiffs on 30 October 2009 be dismissed; 2. order that the plaintiffs pay the defendants' costs of each notice of motion.

CATCHWORDS: PROCEDURE - plaintiffs seek stay of orders until determination of appeal - consideration of litigation history - plaintiffs do not have reasonable prospect of success on appeal - application dismissed

LEGISLATION CITED: Bankruptcy Act 1966 (Cth)
Conveyancing Act 1919 (NSW)

CATEGORY: Procedural and other rulings

CASES CITED: Thompson v White [2008] NSWSC 1
Thompson v White & Ors [2006] NSWCA 350
White v Thompson [2009] NSWSC 1103
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589

PARTIES: 4817/08:
1st Plaintiff: Julian John White
2nd Plaintiff: Romeo Medina Libut
1st Defendant: Byron Ward Thompson
2nd Defendant: Jennifer Joy Thompson
3rd Defendant: Paul Weston as trustee of the bankrupt estate of Byron Ward Thompson
1563/06:
Plaintiff: Julian John White
1st Defendant: Jennifer Joy Thompson
2nd Defendant: Byron Ward Thompson

FILE NUMBER(S): SC 4817/08; 1563/06

COUNSEL: Plaintiffs: In person
1st and 3rd Defendants: D Brown
2nd Defendant: G Rich

SOLICITORS: Plaintiffs: n/a
1st and 3rd Defendants: Brown & Partners
2nd Defendant: Peninsula Law

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

WHITE J

Friday, 6 November 2009

4817/08 Julian John White & Anor v Byron Ward Thompson & Ors
1563/06 Julian John White v Jennifer Joy Thompson & Anor

JUDGMENT

1 HIS HONOUR: The plaintiffs seek orders "That the orders and notes [sic] of his Honour Acting Justice Windeyer made on 15 October 2009 ... be stayed until the determination of the appeal process commenced 29 October 2009."

2 In proceeding 4817 of 2008 Windeyer AJ on 15 October 2009 directed entry of judgment for the defendants on the plaintiffs' claim and ordered the plaintiffs to pay the defendants' costs. His Honour also noted that the undertaking of Mr Weston, who is the trustee in bankruptcy of Mr Thompson, not to deal with the Somersby property, is to be discharged.

3 In proceeding 1563 of 2006 his Honour ordered the plaintiff to withdraw caveat AC155XXX within 21 days and ordered that the summons in those proceedings be dismissed.

4 The only evidence read on the application by either party was an affidavit of Mr White, one of the plaintiffs, that a notice of intention to appeal from his Honour's orders was filed and served on 29 October 2009. The time for filing a notice of appeal is still running.

5 The defendants do not point to any hardship if orders were made extending the time by which the caveat is to be withdrawn until the determination of the appeal or earlier further order, or staying the order that Mr Weston's undertaking not to deal with the property be…

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 White v Thompson

Details

AGLC: White v Thompson [2009] NSWSC 1266
Case: [2009] NSWSC 1266
Decision Date: 6 November 2009

CaseChat Overview and Summary

The plaintiffs, White, sought a stay of orders made by the trial judge in a proceeding against the defendants, Thompson. The proceedings were before the Supreme Court of Victoria and involved a complex history of litigation and appeals. The plaintiffs argued that the orders made by the trial judge should be stayed until the determination of an appeal against those orders. The court had to determine whether the plaintiffs had a reasonable prospect of success on appeal and whether the orders should be stayed until the appeal was determined.

The court considered the litigation history and the arguments presented by the plaintiffs. The court found that the plaintiffs did not have a reasonable prospect of success on appeal. The court noted that the plaintiffs had not provided sufficient evidence to support their claims and that the orders made by the trial judge were based on a sound assessment of the evidence. The court also noted that the plaintiffs had not demonstrated that the orders would cause them significant hardship if they were not stayed. The court concluded that the plaintiffs did not meet the criteria for a stay of the orders.

The application for a stay of orders was dismissed. The court found that the plaintiffs did not have a reasonable prospect of success on appeal and that the orders should not be stayed until the appeal was determined. The court noted that the plaintiffs had not provided sufficient evidence to support their claims and that the orders made by the trial judge were based on a sound assessment of the evidence. The court also found that the plaintiffs had not demonstrated that the orders would cause them significant hardship if they were not stayed. The court concluded that the application for a stay of orders should be dismissed.

The court did not make any orders regarding the stay of the orders. The orders made by the trial judge remained in effect, and the plaintiffs were required to comply with those orders. The court noted that the plaintiffs had the right to appeal the orders made by the trial judge, but that they would need to demonstrate a reasonable prospect of success on appeal if they wished to obtain a stay of those orders. The court also noted that the plaintiffs had the right to seek leave to appeal the orders made by the trial judge, but that they would need to demonstrate that the appeal had merit if they wished to obtain a stay of those orders.

Orders