Ng v Van Der Velde [2010] FCA 89

Ng v Van Der Velde [2010] FCA 89

Ms Ng established that unless a stay of execution was granted, her appeal would be rendered nugatory, as she would lose her home. While she faced procedural difficulties, she had at least an arguable case on appeal. However, given the risk to the respondents and her not being found plainly impecunious, a stay was only granted on condition she provide security for costs.

Parties
Applicant: Kym Hon Toke Ng; First Respondent: Terry Van Der Velde; First Respondent: David Stimpson; Second Respondent: Riby Pty Ltd (ACN 081 153 219) in liquidation as trustee for the Jade Trust
Jurisdiction
Australia
Judgment Date
17 February 2010
Procedural Posture
Practice and Procedure (appeal) / Interlocutory Application (stay of Execution and Security for Costs)
Outcome
Application for stay of execution granted conditionally; application for security for costs granted.
Legal Topics
Stay of Execution, Security for Costs, Impecuniosity, Leave to Raise New Issues on Appeal, Void Dispositions (corporations Act S 468), Voidable Transactions (corporations Act S 588 Fe), Trust Property Vs Company Property, Procedural Fairness/natural Justice
Practice and Procedure Insolvency Law Trust Law Family Law Stay of Execution Security for Costs Impecuniosity Leave to Raise New Issues on Appeal +4 more

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Parties

Kym Hon Toke Ng

Applicant

Terry Van Der Velde

First Respondent

David Stimpson

First Respondent

Riby Pty Ltd (ACN 081 153 219) in liquidation as trustee for the Jade Trust

Second Respondent

Procedural Posture

Practice and Procedure (appeal) / Interlocutory Application (stay of Execution and Security for Costs)

Legal Issues

  1. 1 Whether a stay of execution should be granted pending the applicant's appeal
  2. 2 Whether the applicant should be ordered to provide security for costs of the appeal
  3. 3 Whether new factual and legal issues may be raised on appeal

Ratio Decidendi

Ms Ng established that unless a stay of execution was granted, her appeal would be rendered nugatory, as she would lose her home. While she faced procedural difficulties, she had at least an arguable case on appeal. However, given the risk to the respondents and her not being found plainly impecunious, a stay was only granted on condition she provide security for costs.

Court Disposition

Application for stay of execution granted conditionally; application for security for costs granted.

Orders

  • Applicant (Ms Ng) to pay security for costs of the appeal in the sum of $21,000 (form to be determined).
  • Interim stay of execution of orders of Greenwood J continued until a date to be fixed in approximately four weeks; to be extended further if security is provided as ordered.