Dr Bill Lyon Pty Limited v Smooth as Silk Laser Cosmetic Clinic Pty Limited (No 3) [2019] NSWSC 549

Dr Bill Lyon Pty Limited v Smooth as Silk Laser Cosmetic Clinic Pty Limited (No 3) [2019] NSWSC 549

The stay was discharged because the likely substantial prejudice to the plaintiffs from further delay outweighed any prejudice to the defendants. The defendants had admitted liability, the remaining reference concerned quantum and related issues rather than whether Mr Jodlovich falsified documents, and the asserted overlap with the criminal proceedings was not satisfactorily explained or supported by evidence. The proposed causation argument was difficult to reconcile with the admission of liability and had not been pleaded. Evidence about equipment, stock and other quantum matters was not shown to be relevant to the criminal proceedings. If Mr Jodlovich chose not to give evidence because...

Jurisdiction
Australia
Judgment Date
14 May 2019
Procedural Posture
Civil Procedure; Stay of Proceedings in Equity Commercial List / Defendants' Notice of Motion Filed on 14 February 2019 to Stay the Proceedings Pending Determination of Criminal Proceedings; Plaintiffs No Longer Consented to Continuation of Stay
Outcome
Stay discharged; defendants' notice of motion dismissed with costs.
Legal Topics
['stay of Proceedings' 'concurrent Civil and Criminal Proceedings' 'reference to Referee' 'prejudice' 'right to Silence' 'admissions of Liability' 'causation and Quantum']
['civil Procedure' 'commercial Law' 'equity'] ['stay of Proceedings' 'concurrent Civil and Criminal Proceedings' 'reference to Referee' 'prejudice' 'right to Silence' 'admissions of Liability' 'causation and Quantum']

Case Brief

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Procedural Posture

Civil Procedure; Stay of Proceedings in Equity Commercial List / Defendants' Notice of Motion Filed on 14 February 2019 to Stay the Proceedings Pending Determination of Criminal Proceedings; Plaintiffs No Longer Consented to Continuation of Stay

Legal Issues

  1. 1 ['Whether the stay of the reference should continue pending determination of criminal proceedings against the second defendant.' "Whether continuation of the stay was necessary to achieve justice between the plaintiffs' and defendants' competing rights." "Whether the issues and evidence in the reference overlapped with the criminal proceedings so as to prejudice the second defendant's right to silence." "Whether the defendants' admissions of liability affected the asserted overlap concerning causation."]

Ratio Decidendi

The stay was discharged because the likely substantial prejudice to the plaintiffs from further delay outweighed any prejudice to the defendants. The defendants had admitted liability, the remaining reference concerned quantum and related issues rather than whether Mr Jodlovich falsified documents, and the asserted overlap with the criminal proceedings was not satisfactorily explained or supported by evidence. The proposed causation argument was difficult to reconcile with the admission of liability and had not been pleaded. Evidence about equipment, stock and other quantum matters was not shown to be relevant to the criminal proceedings. If Mr Jodlovich chose not to give evidence because...

Court Disposition

Stay discharged; defendants' notice of motion dismissed with costs.

Orders

  • ['Discharge order 1 of the orders made by the Court on 15 March 2019 that the reference made on 11 July 2018 on the issue of causation and quantum to the Hon. Kevin Lindgren QC be stayed pending further order of the Court.' 'Direct that the plaintiffs notify the Hon. Kevin Lindgren QC of order 1 above.' "The...