KATION PTY LTD v LAMRU PTY LTD; LEWIS v NORTEX PTY LTD (In liq) (No 3) [2009] NSWCA 438

KATION PTY LTD v LAMRU PTY LTD; LEWIS v NORTEX PTY LTD (In liq) (No 3) [2009] NSWCA 438

A stay of enforcement of payment amounts due to Lamru or to the liquidator on behalf of Nortex was warranted pending determination of the proposed special leave application because an arguable issue existed concerning the stock fraud payments, Lamru would not suffer significant additional prejudice after lengthy litigation, Mr Lewis gave undertakings preserving assets and not to lift the stay on the New Zealand judgment, related proceedings and the outstanding New Zealand judgment affected the balance of convenience, and Nortex had no immediate substantive interest in recovery beyond the liquidator's costs while the existing status quo was likely to continue.

Jurisdiction
Australia
Judgment Date
23 December 2009
Procedural Posture
Notice of Motion for Stay of Court of Appeal Orders Pending Proposed Special Leave Application / Court of Appeal Procedural Ruling After Judgments Delivered on 12 June 2009 and 21 December 2009
Outcome
Stay granted in part; notice of motion otherwise dismissed; no order as to costs.
Legal Topics
['stay of Enforcement of Orders' 'proposed Application for Special Leave to Appeal' 'balance of Convenience' 'prospects of Success' 'undertakings Not to Dispose of Assets' 'effect of Other Proceedings and New Zealand Judgment']
['practice and Procedure' 'appellate Procedure' 'equity'] ['stay of Enforcement of Orders' 'proposed Application for Special Leave to Appeal' 'balance of Convenience' 'prospects of Success' 'undertakings Not to Dispose of Assets' 'effect of Other Proceedings and New Zealand Judgment']

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Procedural Posture

Notice of Motion for Stay of Court of Appeal Orders Pending Proposed Special Leave Application / Court of Appeal Procedural Ruling After Judgments Delivered on 12 June 2009 and 21 December 2009

Legal Issues

  1. 1 ['Whether enforcement of payment orders should be stayed pending determination of a proposed special leave application to the High Court, including any extension of time application.' 'Whether the proposed special leave grounds concerning unclean hands in relation to stock fraud payments had sufficient arguability to support a stay.' 'Whether the proposed ground concerning severance of claims against Mark Lewis should be taken into account on the stay application.' 'Whether the outstanding registered New Zealand judgment in favour of Mr Peter Lewis against Mr Lamb and other proceedings between the parties affected the balance of convenience.' 'Whether undertakings by Mr Lewis not to dispose of assets and not to lift the stay on the New Zealand judgment were sufficient to address prejudice.']

Ratio Decidendi

A stay of enforcement of payment amounts due to Lamru or to the liquidator on behalf of Nortex was warranted pending determination of the proposed special leave application because an arguable issue existed concerning the stock fraud payments, Lamru would not suffer significant additional prejudice after lengthy litigation, Mr Lewis gave undertakings preserving assets and not to lift the stay on the New Zealand judgment, related proceedings and the outstanding New Zealand judgment affected the balance of convenience, and Nortex had no immediate substantive interest in recovery beyond the liquidator's costs while the existing status quo was likely to continue.

Court Disposition

Stay granted in part; notice of motion otherwise dismissed; no order as to costs.

Orders

  • ['On the undertaking of Mr Lewis, in the terms set out in a handwritten document, signed by Mr Lewis, handed to the Court, and on the further undertaking of Mr Lewis, given through counsel in Court, that he will not seek to lift the stay which is presently enforced in respect of the registration of a New Zealand...