Nicholls v Michael Wilson & Partners Limited [2010] NSWCA 18

Nicholls v Michael Wilson & Partners Limited [2010] NSWCA 18

The Court was not persuaded that Mr Slater or Mr Nicholls had deliberately withheld financial information. On the evidence, an order requiring payment of the judgment sum or a significant part of it into court or an interest bearing account would likely cause effective insolvency and hamper the proper and expedited disposition of the appeal. The appropriate course was to continue the temporary stays and freezing orders until further order, supported by undertakings including the respondent's undertaking as to damages and appellants' undertakings as to expedition and financial disclosure.

Jurisdiction
Australia
Judgment Date
01 February 2010
Procedural Posture
Appeal From Supreme Court of New South Wales, Equity Division, Commercial List; Procedural Ruling / Interlocutory Application Concerning Stay of Judgment, Continuation of Freezing Orders and Security for Costs
Outcome
Temporary stays and freezing orders continued until further order; payment of the judgment sum into court or a joint interest bearing account was not ordered; security for costs applications were deferred.
Legal Topics
['stay of Judgment Pending Appeal' 'freezing Orders' 'security for Costs' 'undertaking as to Damages' 'expedited Appeals' 'disclosure of Financial Position']
['civil Procedure' 'appellate Procedure' 'commercial Litigation'] ['stay of Judgment Pending Appeal' 'freezing Orders' 'security for Costs' 'undertaking as to Damages' 'expedited Appeals' 'disclosure of Financial Position']

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Procedural Posture

Appeal From Supreme Court of New South Wales, Equity Division, Commercial List; Procedural Ruling / Interlocutory Application Concerning Stay of Judgment, Continuation of Freezing Orders and Security for Costs

Legal Issues

  1. 1 ['Whether the appellants should be required to pay some or all of the judgment sum into court or into a joint interest bearing account pending appeal.' 'Whether temporary stays of the judgment should continue pending appeal.' 'Whether freezing orders should continue pending appeal.' 'Whether the affidavits of means and circumstances justified a conclusion that Mr Slater or Mr Nicholls had deliberately withheld information.' 'Whether security for costs applications should be dealt with immediately or at a later date.']

Ratio Decidendi

The Court was not persuaded that Mr Slater or Mr Nicholls had deliberately withheld financial information. On the evidence, an order requiring payment of the judgment sum or a significant part of it into court or an interest bearing account would likely cause effective insolvency and hamper the proper and expedited disposition of the appeal. The appropriate course was to continue the temporary stays and freezing orders until further order, supported by undertakings including the respondent's undertaking as to damages and appellants' undertakings as to expedition and financial disclosure.

Court Disposition

Temporary stays and freezing orders continued until further order; payment of the judgment sum into court or a joint interest bearing account was not ordered; security for costs applications were deferred.

Orders

  • ['Order in terms of Order 1 made on 16 December 2009 and sealed on 17 December 2009 excluding the words "and including 1 February 2010 or".' 'Order in terms of order 8 of the same orders excluding the words, "and including 1 February 2010", and inserting in their place the words, "further order".' 'Costs of today...