Young v Hones (No 4) - [2015] NSWSC 792

Supreme Court

New South Wales

Medium Neutral Citation: Young v Hones (No 4) [2015] NSWSC 792
Hearing dates: 10 June 2015
Date of orders: 10 June 2015
Decision date: 10 June 2015
Before: Garling J
Decision:
No further order made

Catchwords: PROCEDURE – civil – order seeking confirmation that stay on costs orders has been dissolved – alternative order sought to dissolve stay – stay made “until further order” – whether stay order made is still in existence – regard to principle of finality of litigation – held that an interlocutory order granted “until further order” ceases when proceedings are finally determined
Legislation Cited: Not Applicable
Cases Cited: Fatimi Pty Ltd v Bryant [2002] NSWSC 750
Klewer v Official Trustee in Bankruptcy (No 2) [2010] NSWCA 258
Young v Hones (No 2) [2013] NSWSC 1429
Young v Hones [2014] NSWCA 337.
Young v Hones [2015] HCASL 73.
Texts Cited: Not Applicable
Category: Procedural and other rulings
Parties: Margo Young (P)
Keith Brian Hones (D1)
Jason Hones (D2)
Ian Hemmings (D3)
Hughes Trueman Pty Ltd (D4)
Stephen Perrens (D5)
Representation:
Counsel:
R Newell (P)
B McManus (D1, D2)
P Horvath (D3)
R Withana (D4, D5)
Solicitors:
L C Muriniti & Associates (P)
Colin Biggers & Paisley (D1, D2)
Moray & Agnew (D3)
Kennedys (D4, D5)

File Number(s): 2010/41007
Publication restriction: Not Applicable

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EX TEMPORE Judgment

On 27 September 2013, for the reasons which I then published in Young v Hones (No 2) [2013] NSWSC 1429, I dismissed the claim brought by Ms Young against each of the defendants.
In a judgment published on 1 May 2014, I made orders that the plaintiff pay the costs of each of the defendants. Those orders provided for costs to be paid in specified lump sum amounts. On that day, I also made an order in the following terms:

"Order, until further order, that orders 2, 3 and 4 be stayed".

Orders 2, 3 and 4 were the lump sum costs orders.

On 1 October 2014, the Court of Appeal delivered judgment in respect of an appeal by Ms Young from my decision of 27 September 2013. The Court of Appeal ordered that the appeal be dismissed with costs: Young v Hones [2014] NSWCA 337.
An application for special leave to appeal against the decision of the Court of Appeal was made but was dismissed by the High Court of Australia on 6 May 2015: Young v Hones [2015] HCASL 73.
After the High Court decision, an application was made to relist the proceedings before me.
The proceedings have come before me today. The defendants each seek an order confirming that the stay granted by me on 1 May 2014, with respect to the costs orders has been dissolved or, alternatively, an order dissolving that stay.
Counsel for Ms Young opposes the orders and submits that in circumstances which he anticipates will be more fully described in a judgment to be delivered in the Land and Environment Court 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 Young v Hones (No 4)

Details

AGLC: Young v Hones (No 4) [2015] NSWSC 792
Case: [2015] NSWSC 792
Decision Date: 10 June 2015

CaseChat Overview and Summary

The matter of Young v Hones (No 4) involved a dispute over the existence and duration of a stay on costs orders in civil proceedings. The High Court was called upon to determine the status of a stay order that had been granted "until further order." The respondent sought an order confirming that the stay had been dissolved, while the appellant argued that the stay remained in effect until specifically revoked.

The central legal issue before the Court was whether an interlocutory order made "until further order" continues to exist after the final determination of the proceedings. The Court had to consider the principle of finality of litigation and whether such an order remains in force post-judgment. The question was whether the stay order had effectively dissolved upon the conclusion of the proceedings or whether it required explicit revocation to be dissolved.

The Court held that an interlocutory order made "until further order" ceases to exist when the proceedings are finally determined. The Court reasoned that such an order is inherently temporary and is intended to remain in place only until the Court makes another order. Once the proceedings are concluded, the order is no longer operative, as it does not automatically continue beyond the determination of the case. This decision was consistent with the principle of finality of litigation, which ensures that litigation is brought to a definitive end.

The Court accordingly made the order sought by the respondent, confirming that the stay on costs orders had been dissolved. The stay order was held to have ceased upon the final determination of the proceedings. No further action was required to dissolve the stay, as it had already effectively been dissolved by the conclusion of the litigation.

Orders