Fluer de Lys Ltd v Kevin Jarrett [2003] NSWLC 12

Fluer de Lys Ltd v Kevin Jarrett [2003] NSWLC 12

Special circumstances existed justifying refusal to stay proceedings for unpaid costs, including ongoing appeal and allegation of fraud. Security for costs was refused due to strength of judgment creditor's case and the tactical/oppressive nature of the application. Orders made on 28 November 2002 were set aside as procured by fraud, with strong evidence that the defendant presented false evidence.

Parties
Plaintiff/judgment Creditor: Fluer de Lys Pty Ltd t/a Multiform Furniture; Defendant/judgment Debtor: Kevin Jarrett
Jurisdiction
Australia
Judgment Date
05 September 2003
Procedural Posture
Civil / Ruling on Three Motions (stay of Proceedings, Security for Costs, Setting Aside Orders)
Outcome
First and second motions by judgment debtor dismissed with costs; third motion by judgment creditor granted; permanent stay set aside; costs on indemnity basis ordered against judgment debtor; papers to be referred to DPP for consideration of possible fraud.
Legal Topics
Stay of Proceedings, Security for Costs, Setting Aside Orders, Estoppel by Conduct, Irregularity, Illegality, Or Bad Faith, Fabrication of Evidence, Relief Ex Debito Justitiae
Civil Procedure Stay of Proceedings Security for Costs Setting Aside Orders Estoppel by Conduct Irregularity, Illegality, or Bad Faith Fabrication of Evidence Relief Ex Debito Justitiae

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Parties

Fluer de Lys Pty Ltd t/a Multiform Furniture

Plaintiff/judgment Creditor

Kevin Jarrett

Defendant/judgment Debtor

Procedural Posture

Civil / Ruling on Three Motions (stay of Proceedings, Security for Costs, Setting Aside Orders)

Legal Issues

  1. 1 Whether proceedings should be stayed for unpaid costs under Pt 21 r7 of the Local Court Civil Claims Rules
  2. 2 Whether judgment creditor should provide security for costs under s.1335 of the Corporations Law
  3. 3 Whether permanent stay order and earlier orders should be set aside due to irregularity, illegality, or bad faith (fraud) under Pt 26 r3 or common law relief

Ratio Decidendi

Special circumstances existed justifying refusal to stay proceedings for unpaid costs, including ongoing appeal and allegation of fraud. Security for costs was refused due to strength of judgment creditor's case and the tactical/oppressive nature of the application. Orders made on 28 November 2002 were set aside as procured by fraud, with strong evidence that the defendant presented false evidence.

Court Disposition

First and second motions by judgment debtor dismissed with costs; third motion by judgment creditor granted; permanent stay set aside; costs on indemnity basis ordered against judgment debtor; papers to be referred to DPP for consideration of possible fraud.

Orders

  • First motion (of the Judgment debtor) dismissed with costs.
  • Second motion (of Judgment debtor) dismissed with costs.