Croc’s Franchising Pty Ltd v Alamdo Holdings Pty Limited [2023] NSWCA 85

Croc’s Franchising Pty Ltd v Alamdo Holdings Pty Limited [2023] NSWCA 85

The stay of execution is granted on terms that appellants either pay into court the arrears component of the judgment or provide security over specified properties, as failure to do so would render the right of appeal nugatory; the appeal is not unarguable, and such conditions appropriately balance the prejudice between parties given the appellants' insolvency.

Parties
First Appellant: Croc's Franchising Pty Ltd; Second Appellant: Brett Christopher Aldons; Third Appellant: Lawrence John Cusdin; First Respondent: Alamdo Holdings Pty Limited; Second Respondent: State of New South Wales
Jurisdiction
Australia
Judgment Date
17 April 2023
Procedural Posture
Appeal / Application for Stay Pending Appeal and Security for Costs
Outcome
Stay of execution granted subject to conditions; security for costs granted.
Legal Topics
Stay of Execution, Security for Costs, Lease Termination, Guarantee Liability, COVID 19 Leasing Regulation, Voidable Transactions
Civil Procedure Bankruptcy Property Law Commercial Leasing Stay of Execution Security for Costs Lease Termination Guarantee Liability +2 more

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Parties

Croc's Franchising Pty Ltd

First Appellant

Brett Christopher Aldons

Second Appellant

Lawrence John Cusdin

Third Appellant

Alamdo Holdings Pty Limited

First Respondent

State of New South Wales

Second Respondent

Procedural Posture

Appeal / Application for Stay Pending Appeal and Security for Costs

Legal Issues

  1. 1 Whether a stay of execution of judgment pending appeal should be granted
  2. 2 Whether the appellants should provide security for partial payment of judgment debt or alternate security
  3. 3 Interpretation and effect of the COVID-19 Regulation on lease arrears

Ratio Decidendi

The stay of execution is granted on terms that appellants either pay into court the arrears component of the judgment or provide security over specified properties, as failure to do so would render the right of appeal nugatory; the appeal is not unarguable, and such conditions appropriately balance the prejudice between parties given the appellants' insolvency.

Court Disposition

Stay of execution granted subject to conditions; security for costs granted.

Orders

  • Appellants to provide usual undertaking as to damages and further undertakings as specified.
  • Appellants to either pay $180,588.28 plus accrued interest into court or deposit mortgages over specified properties as security.