Brown & Ors v Hodgkinson & Ors (No 3) [2009] NSWSC 436

Brown & Ors v Hodgkinson & Ors (No 3) [2009] NSWSC 436

A stay of execution pending appeal should be granted where there are arguable grounds of appeal and the applicants provide sufficient security for the judgment debt, interest, and costs, in a form not unduly prejudicial to them and acceptable to the respondents.

Parties
First Plaintiff: Justin John Brown; Second Plaintiff: Sharlotte Pty Ltd; Third Plaintiff/1st Cross Defendant: Abadeen Group Pty Ltd; Fourth Plaintiff: Lighter Quay Investments Ltd; Fifth Plaintiff: Greenberg Investments Development Ltd; 2nd Cross Defendant: Brooke Brown; First Defendant: Lance Hodgkinson; Second Defendant/1st Cross Claimant: Bluestone Property Services Pty Ltd; Third Defendant: 230 Palmer Street Pty Ltd; Fourth Defendant: Daniel Hausman; 2nd Cross Claimant: Namsauh Holdings Pty Ltd; Fifth Defendant: Crown Street Developments Pty Ltd; Sixth Defendant/3rd Cross Claimant: 519 St Kilda Road Developments Pty Ltd; Seventh Defendant: Gorcha Pty Ltd
Jurisdiction
Australia
Judgment Date
19 May 2009
Procedural Posture
Application for Stay of Execution Pending Appeal / Post Judgment; Application for Stay Pending Appeal
Outcome
Stay granted on terms
Legal Topics
Stay of Execution, Appeal, Security for Judgment Debt
Civil Procedure Stay of Execution Appeal Security for Judgment Debt

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Parties

Justin John Brown

First Plaintiff

Sharlotte Pty Ltd

Second Plaintiff

Abadeen Group Pty Ltd

Third Plaintiff/1st Cross Defendant

Lighter Quay Investments Ltd

Fourth Plaintiff

Greenberg Investments Development Ltd

Fifth Plaintiff

Brooke Brown

2nd Cross Defendant

Lance Hodgkinson

First Defendant

Bluestone Property Services Pty Ltd

Second Defendant/1st Cross Claimant

230 Palmer Street Pty Ltd

Third Defendant

Daniel Hausman

Fourth Defendant

Namsauh Holdings Pty Ltd

2nd Cross Claimant

Crown Street Developments Pty Ltd

Fifth Defendant

519 St Kilda Road Developments Pty Ltd

Sixth Defendant/3rd Cross Claimant

Gorcha Pty Ltd

Seventh Defendant

Procedural Posture

Application for Stay of Execution Pending Appeal / Post Judgment; Application for Stay Pending Appeal

Legal Issues

  1. 1 Whether a stay of execution of judgment should be granted pending appeal
  2. 2 Terms upon which a stay should be granted

Ratio Decidendi

A stay of execution pending appeal should be granted where there are arguable grounds of appeal and the applicants provide sufficient security for the judgment debt, interest, and costs, in a form not unduly prejudicial to them and acceptable to the respondents.

Court Disposition

Stay granted on terms

Orders

  • Execution of the judgment is stayed pending appeal upon condition that the Brown parties provide security over properties by way of second mortgages in a form acceptable to the Hodgkinson parties' solicitors, as outlined in Mr Brown’s affidavit of 18 May 2009.
  • Brown parties to file their Notice of Appeal within seven days.