Scrivener v Cappello [2021] NSWCA 239

Scrivener v Cappello [2021] NSWCA 239

Mr Scrivener did not establish a relevant basis for a stay. Tuscany had not appealed and Mr Scrivener lacked standing to challenge the judgment against Tuscany, so any disadvantage to him as Tuscany's director was not a basis to stay a judgment not personally binding on him. His evidence about lack of assets was unsatisfactory and did not show that the appeal would be stultified. Any concern about dissipation of enforcement proceeds or bankruptcy proceedings was addressed by undertakings proffered by the first and second respondents, so the stay motion was dismissed on condition that those undertakings be filed.

Jurisdiction
Australia
Judgment Date
01 October 2021
Procedural Posture
Appeal; Notice of Motion Seeking a Stay of Judgment Pending Appeal / Application for Stay Pending Appeal in the New South Wales Court of Appeal
Outcome
The appellant's Notice of Motion seeking a stay was dismissed upon the first and second respondents giving specified undertakings to the Court; leave was granted to relist if the undertakings were not filed within 7 days.
Legal Topics
['stay of Judgment Pending Appeal' 'undertakings to the Court' 'enforcement of Judgments' 'accessorial Liability' 'partnership and Fiduciary Duties']
['civil Procedure' 'appeals' 'equity'] ['stay of Judgment Pending Appeal' 'undertakings to the Court' 'enforcement of Judgments' 'accessorial Liability' 'partnership and Fiduciary Duties']

Case Brief

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Procedural Posture

Appeal; Notice of Motion Seeking a Stay of Judgment Pending Appeal / Application for Stay Pending Appeal in the New South Wales Court of Appeal

Legal Issues

  1. 1 ['Whether the appellant established a reason for a stay of the judgments pending appeal.' 'Whether potential prejudice to the appellant as a director of Tuscany Corporation Pty Ltd was a relevant basis to stay enforcement of a judgment Tuscany had not appealed.' 'Whether the absence of a stay would stultify the appeal or create risks requiring protection by undertakings.']

Ratio Decidendi

Mr Scrivener did not establish a relevant basis for a stay. Tuscany had not appealed and Mr Scrivener lacked standing to challenge the judgment against Tuscany, so any disadvantage to him as Tuscany's director was not a basis to stay a judgment not personally binding on him. His evidence about lack of assets was unsatisfactory and did not show that the appeal would be stultified. Any concern about dissipation of enforcement proceeds or bankruptcy proceedings was addressed by undertakings proffered by the first and second respondents, so the stay motion was dismissed on condition that those undertakings be filed.

Court Disposition

The appellant's Notice of Motion seeking a stay was dismissed upon the first and second respondents giving specified undertakings to the Court; leave was granted to relist if the undertakings were not filed within 7 days.

Orders

  • ["Upon the first and second respondents undertaking to the Court within 7 days (a) that any proceeds of enforcement of the subject judgments will be paid into the trust account of their solicitors, RJI Legal, pending final orders being made disposing of the appeal and cross-appeal in these proceedings and (b) that...