Bradcorp Wilton Park Pty Limited v Country Garden Wilton West Pty Limited [2019] NSWCA 287

Bradcorp Wilton Park Pty Limited v Country Garden Wilton West Pty Limited [2019] NSWCA 287

Because the appeal was arguable and there were reciprocal risks that Bradcorp might be unable readily to recover monies from the respondents if it paid and succeeded on appeal, and that CGWW might be unable to enforce the judgment against Bradcorp if the stay continued and the appeal failed, the appropriate exercise of discretion was to grant a stay only on conditions protecting both sides, including undertakings and payment of $9,644,449.32 into escrow within three weeks.

Jurisdiction
Australia
Judgment Date
29 November 2019
Procedural Posture
Notice of Motion for Stay of Execution of Judgment Pending Appeal / Interlocutory Application in the Court of Appeal; Appeal Fixed to Commence on 3 March 2020
Outcome
Stay of execution extended on conditions; notice of motion otherwise dismissed; costs in the cause.
Legal Topics
['stay of Execution Pending Appeal' 'arguable Appeal' 'risk of Inability to Recover Judgment Monies' 'escrow Account' 'put and Call Option Agreements']
['civil Procedure' 'appeals' 'contract'] ['stay of Execution Pending Appeal' 'arguable Appeal' 'risk of Inability to Recover Judgment Monies' 'escrow Account' 'put and Call Option Agreements']

Case Brief

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Procedural Posture

Notice of Motion for Stay of Execution of Judgment Pending Appeal / Interlocutory Application in the Court of Appeal; Appeal Fixed to Commence on 3 March 2020

Legal Issues

  1. 1 ['Whether execution of the judgment and orders of Parker J should be stayed pending determination of the appeal.' 'Whether the appeal was arguable.' 'Whether there was a risk that, if no stay were granted and the appeal succeeded, the appellant would be unable to recover amounts paid to the respondents.' 'Whether there was a risk that, if a stay were granted and the appeal failed, the first respondent would be unable to enforce the judgment against the appellant.' 'Whether any stay should be conditional on undertakings and payment of monies into escrow.']

Ratio Decidendi

Because the appeal was arguable and there were reciprocal risks that Bradcorp might be unable readily to recover monies from the respondents if it paid and succeeded on appeal, and that CGWW might be unable to enforce the judgment against Bradcorp if the stay continued and the appeal failed, the appropriate exercise of discretion was to grant a stay only on conditions protecting both sides, including undertakings and payment of $9,644,449.32 into escrow within three weeks.

Court Disposition

Stay of execution extended on conditions; notice of motion otherwise dismissed; costs in the cause.

Orders

  • ['On the condition that the undertakings previously given by the appellant are correspondingly extended, the stay granted by Parker J on 7 November 2019 was extended to 5.00pm on Tuesday 3 December 2019.' 'Upon the appellant and each of its directors giving specified undertakings, the stay was extended until 5.00pm...