Farkas v Ping; Wang v Farkas [2013] NSWCA 440

Farkas v Ping; Wang v Farkas [2013] NSWCA 440

The original ANZ bank guarantee had been lodged with the Court and, on the proper construction of the 9 September 2013 orders, the stay of execution of the writ was in place and continued at least until 31 March 2014. The 21 day requirement did not condition the stay itself, and it would not accord with the intended holding pattern for Mr Farkas to retain both the guarantee and the registered writ. The undertaking proffered by Mr Wang sufficiently protected the unlikely risk that judgment remained reserved after February 2014, so Mr Farkas was directed to remove the writ registrations.

Jurisdiction
Australia
Judgment Date
12 December 2013
Procedural Posture
Interlocutory Applications / Notices of Motion Concerning Stay and Security Pending Determination of Court of Appeal Proceedings
Outcome
Undertaking accepted; stay confirmed; Mr Farkas directed to remove the writ registrations; both notices of motion otherwise dismissed; no order as to costs.
Legal Topics
['stay Pending Appeal' 'interpretation of Interlocutory Orders' 'bank Guarantee as Security' 'writ of Levy' 'costs']
['practice and Procedure'] ['stay Pending Appeal' 'interpretation of Interlocutory Orders' 'bank Guarantee as Security' 'writ of Levy' 'costs']

Case Brief

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Procedural Posture

Interlocutory Applications / Notices of Motion Concerning Stay and Security Pending Determination of Court of Appeal Proceedings

Legal Issues

  1. 1 ['Whether the stay of execution of the writ reflected in orders made on 9 September 2013 remained in place despite the original bank guarantee not being lodged within 21 days.' "Whether Mr Farkas was obliged to remove the registration of the writ on the applicants' properties." 'Whether the time-limited ANZ bank guarantee sufficiently protected Mr Farkas pending determination of the proceedings.' 'Whether particulars should be ordered as to how the amount of $411,813 was calculated.' 'Whether any costs order should be made.']

Ratio Decidendi

The original ANZ bank guarantee had been lodged with the Court and, on the proper construction of the 9 September 2013 orders, the stay of execution of the writ was in place and continued at least until 31 March 2014. The 21 day requirement did not condition the stay itself, and it would not accord with the intended holding pattern for Mr Farkas to retain both the guarantee and the registered writ. The undertaking proffered by Mr Wang sufficiently protected the unlikely risk that judgment remained reserved after February 2014, so Mr Farkas was directed to remove the writ registrations.

Court Disposition

Undertaking accepted; stay confirmed; Mr Farkas directed to remove the writ registrations; both notices of motion otherwise dismissed; no order as to costs.

Orders

  • ['Note the acceptance of the undertaking to the Court proffered by Mr Wang on behalf of him and wife in the terms of paragraph 3 of MFI 1.' 'Note that the original ANZ Bank Guarantee in the amount of $411,813 remains lodged with the Registrar of the Court of Appeal supporting the interlocutory regime originally made...