Hickie v Land Enviro Corp Pty Ltd [2014] NSWSC 472

Hickie v Land Enviro Corp Pty Ltd [2014] NSWSC 472

The defendants did not demonstrate any proper basis for a stay. Their proposed special leave grounds reduced to a factual complaint about the finding that there was no agency between Mr Renshall or HTT and the Hickie interests, raised no question of law of wider importance, and had no reasonable prospect of attracting special leave. The balance of convenience favoured the plaintiffs, who were entitled to the fruits of the unchallenged costs judgment, where the corporate defendants were insolvent, there was no risk that the proposed High Court appeal would be rendered abortive without a stay, no dissipation risk was identified, and the costs assessment was not challenged. The $15,000 paid...

Jurisdiction
Australia
Judgment Date
29 April 2014
Procedural Posture
Notice of Motion for Stay Pending Application for Special Leave to Appeal, and Plaintiffs' Motion for Payment Out of Security / Supreme Court of New South Wales Determination After Dismissal of S 46(4) Application by the Court of Appeal and Pending Proposed High Court Special Leave Application
Outcome
The defendants' notice of motion for a stay was dismissed with costs, and the plaintiffs' motion for payment out of the $15,000 security was granted.
Legal Topics
['stay Pending Appeal' 'special Leave to Appeal to the High Court' 'enforcement of Costs Judgment' 'security for Costs' 'payment Out of Money Paid Into Court']
['civil Procedure' 'appellate Procedure' 'costs'] ['stay Pending Appeal' 'special Leave to Appeal to the High Court' 'enforcement of Costs Judgment' 'security for Costs' 'payment Out of Money Paid Into Court']

Case Brief

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Procedural Posture

Notice of Motion for Stay Pending Application for Special Leave to Appeal, and Plaintiffs' Motion for Payment Out of Security / Supreme Court of New South Wales Determination After Dismissal of S 46(4) Application by the Court of Appeal and Pending Proposed High Court Special Leave Application

Legal Issues

  1. 1 ['Whether the costs judgment or order 4 of the NSW Court of Appeal judgment dated 4 March 2014 should be stayed pending determination of an application for special leave to appeal to the High Court and any appeal.' 'Whether the defendants demonstrated realistic or arguable prospects of success, or a substantial prospect that special leave would be granted.' 'Whether the balance of convenience justified depriving the plaintiffs of the fruits of their costs judgment.' "Whether the $15,000 paid into Court as security for the plaintiffs' costs of the s 46(4) application should be paid out to Bartier Perry."]

Ratio Decidendi

The defendants did not demonstrate any proper basis for a stay. Their proposed special leave grounds reduced to a factual complaint about the finding that there was no agency between Mr Renshall or HTT and the Hickie interests, raised no question of law of wider importance, and had no reasonable prospect of attracting special leave. The balance of convenience favoured the plaintiffs, who were entitled to the fruits of the unchallenged costs judgment, where the corporate defendants were insolvent, there was no risk that the proposed High Court appeal would be rendered abortive without a stay, no dissipation risk was identified, and the costs assessment was not challenged. The $15,000 paid...

Court Disposition

The defendants' notice of motion for a stay was dismissed with costs, and the plaintiffs' motion for payment out of the $15,000 security was granted.

Orders

  • ["Dismiss the defendants' notice of motion filed 25 March 2014 with costs." 'Order that the amount of $15,000 paid into Court on 28 May 2013 on behalf of the defendants be paid out to Bartier Perry, solicitors.' "Order the defendants to pay the plaintiffs' costs of their motion filed 3 April 2014, limited to the...