ACN 057 690 034 Pty Limited v Wykrota (No 2) [2020] NSWSC 1780

ACN 057 690 034 Pty Limited v Wykrota (No 2) [2020] NSWSC 1780

Although the first defendant had filed an application for leave to appeal, he did little beyond pointing to that fact to justify a stay. The judgments and orders were presumed correct, the plaintiff was presently entitled to the money in Court and had substantial assets and income sufficient to repay the judgment sum if the appeal succeeded. However, a fair adjustment of the parties' competing rights warranted giving the first defendant 21 days to keep the monies in Court by paying a further $100,000 on account of the plaintiff's costs; otherwise the $270,000 would be paid out to the plaintiff and the first defendant would pay the relevant costs.

Jurisdiction
Australia
Judgment Date
20 November 2020
Procedural Posture
Application for Stay of Enforcement of Judgment and Orders and Application for Payment Out of Monies in Court / Post Judgment; Pending Application for Leave to Appeal
Outcome
Conditional stay granted: the $270,000 paid into Court was ordered to be paid to the plaintiff, but that order was stayed until 4.00 pm on 11 December 2020; if the first defendant paid a further $100,000 into Court by then, the payment-out order would be further stayed until determination of the application for...
Legal Topics
['stay of Enforcement' 'payment Out of Court' 'security for Costs Pending Appeal' 'leave to Appeal']
['civil Procedure' 'equity'] ['stay of Enforcement' 'payment Out of Court' 'security for Costs Pending Appeal' 'leave to Appeal']

Case Brief

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Procedural Posture

Application for Stay of Enforcement of Judgment and Orders and Application for Payment Out of Monies in Court / Post Judgment; Pending Application for Leave to Appeal

Legal Issues

  1. 1 ["Whether enforcement of the judgments and orders should be stayed pending the first defendant's application for leave to appeal and any appeal." 'Whether monies paid into Court by the first defendant should be paid out to the plaintiff.' 'Whether any stay should be conditional on the first defendant paying further monies into Court to secure adverse costs orders.']

Ratio Decidendi

Although the first defendant had filed an application for leave to appeal, he did little beyond pointing to that fact to justify a stay. The judgments and orders were presumed correct, the plaintiff was presently entitled to the money in Court and had substantial assets and income sufficient to repay the judgment sum if the appeal succeeded. However, a fair adjustment of the parties' competing rights warranted giving the first defendant 21 days to keep the monies in Court by paying a further $100,000 on account of the plaintiff's costs; otherwise the $270,000 would be paid out to the plaintiff and the first defendant would pay the relevant costs.

Court Disposition

Conditional stay granted: the $270,000 paid into Court was ordered to be paid to the plaintiff, but that order was stayed until 4.00 pm on 11 December 2020; if the first defendant paid a further $100,000 into Court by then, the payment-out order would be further stayed until determination of the application for...

Orders

  • ['Pursuant to rule 41.3 of the Uniform Civil Procedure Rules 2005, order that the monies paid into Court by the first defendant on 14 September 2020 in the amount of $270,000 be paid to the plaintiff.' 'Stay Order 1 until 4.00 pm on 11 December 2020.' "Direct the first defendant to pay into Court the sum of $100,000...