Walker Group Constructions Pty Ltd v Tzaneros Investments Pty Ltd [2016] NSWCA 106

Walker Group Constructions Pty Ltd v Tzaneros Investments Pty Ltd [2016] NSWCA 106

Although WGC had an arguable appeal and TZI alone was unlikely to be able to repay a significantly expended judgment sum, the undertakings offered by Terry and Anne Tzaneros, TZI 1 Pty Ltd, ZED Group Australia Pty Ltd and TZI, supported by evidence of net assets exceeding $25m, meant WGC was not likely to experience significant difficulty or delay in obtaining repayment if successful. Any delay would be sufficiently compensated by interest. The balance of convenience therefore did not favour a stay, provided properly framed undertakings were filed and served.

Jurisdiction
Australia
Judgment Date
12 May 2016
Procedural Posture
Procedure Application for a Stay of Execution of Primary Judgment and Order Releasing Security for Costs / Notice of Motion in the Court of Appeal Pending Appeal
Outcome
The appellant's notice of motion filed 2 May 2016 was dismissed conditionally on the filing and service of duly executed undertakings; if the undertakings were not filed, execution of specified judgment, costs and security-release orders would be stayed until further order.
Legal Topics
['stay of Execution Pending Appeal' 'security for Costs' 'undertakings to the Court' 'balance of Convenience' 'repayment Risk If Appeal Succeeds']
['civil Procedure' 'appellate Procedure'] ['stay of Execution Pending Appeal' 'security for Costs' 'undertakings to the Court' 'balance of Convenience' 'repayment Risk If Appeal Succeeds']

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Procedural Posture

Procedure Application for a Stay of Execution of Primary Judgment and Order Releasing Security for Costs / Notice of Motion in the Court of Appeal Pending Appeal

Legal Issues

  1. 1 ['Whether execution of the primary judgment, costs orders and order releasing security for costs should be stayed pending appeal.' 'Whether there was a risk that Tzaneros Investments Pty Ltd would be unable to repay the judgment sum and interest or satisfy adverse costs orders if the appeal succeeded.' 'Whether undertakings offered by Terry and Anne Tzaneros, TZI 1 Pty Ltd, ZED Group Australia Pty Ltd and Tzaneros Investments Pty Ltd sufficiently addressed any repayment risk.' 'Whether the balance of convenience favoured granting a stay.']

Ratio Decidendi

Although WGC had an arguable appeal and TZI alone was unlikely to be able to repay a significantly expended judgment sum, the undertakings offered by Terry and Anne Tzaneros, TZI 1 Pty Ltd, ZED Group Australia Pty Ltd and TZI, supported by evidence of net assets exceeding $25m, meant WGC was not likely to experience significant difficulty or delay in obtaining repayment if successful. Any delay would be sufficiently compensated by interest. The balance of convenience therefore did not favour a stay, provided properly framed undertakings were filed and served.

Court Disposition

The appellant's notice of motion filed 2 May 2016 was dismissed conditionally on the filing and service of duly executed undertakings; if the undertakings were not filed, execution of specified judgment, costs and security-release orders would be stayed until further order.

Orders

  • ["On condition that the first respondent file in the Registry and serve on the appellant duly executed undertakings of Terry and Anne Tzaneros, TZI 1 Pty Ltd, ZED Group Australia Pty Ltd and of itself, those undertakings to be substantially in the form attached to these reasons, by 4pm on 13 May 2016, dismiss the...