Despot v Registrar General of NSW (No 2) [2014] NSWSC 1122

Despot v Registrar General of NSW (No 2) [2014] NSWSC 1122

The judgment should not be reopened because the Court did not proceed on a misunderstanding of the facts: it had proceeded on the basis that Mr Carbone attended settlement and handed over the documents, and Stelli was entitled, on the unchallenged findings of Macready AsJ and by reason of s 48 of the Powers of Attorney Act 2003 (NSW), to accept the executed transfer as a discharge of Mr Despot's obligations under the contract. The subsequent revocation of the power of attorney did not affect what had occurred before revocation. No stay should be granted because Stelli identified no grounds on which the discretionary refusal of set-off might have miscarried, should not be put in a better...

Jurisdiction
Australia
Judgment Date
20 August 2014
Procedural Posture
Procedural and Other Rulings / Notice of Motion to Reopen Judgment Under Uniform Civil Procedure Rules 2005 (nsw), R 36.16(3 A), and Application for Stay Pending Appeal
Outcome
The plaintiff's application to reopen was refused and the third and fourth defendants' application for a stay was dismissed.
Legal Topics
['application to Vary or Set Aside Judgment' 'application to Reopen Judgment' 'stay Pending Appeal' 'specific Performance' 'power of Attorney' 'set Off' "vendor's Lien"]
['civil Procedure' 'contract Law' 'property Law'] ['application to Vary or Set Aside Judgment' 'application to Reopen Judgment' 'stay Pending Appeal' 'specific Performance' 'power of Attorney' 'set Off' "vendor's Lien"]

Case Brief

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Procedural Posture

Procedural and Other Rulings / Notice of Motion to Reopen Judgment Under Uniform Civil Procedure Rules 2005 (nsw), R 36.16(3 A), and Application for Stay Pending Appeal

Legal Issues

  1. 1 ['Whether the judgment delivered on 28 July 2014 should be reopened on the ground that it proceeded on a misapprehension of fact.' 'Whether the judgment should be set aside because Stelli Pty Ltd had not paid the balance of the purchase price.' 'Whether Stelli Pty Ltd and Westpac Banking Corporation should obtain a stay pending the resolution of any appeal against the obligation to pay the balance of the purchase price.' 'Whether Westpac Banking Corporation should be relieved pending appeal from compliance with its undertaking to advance funds for payment to Mr Despot.']

Ratio Decidendi

The judgment should not be reopened because the Court did not proceed on a misunderstanding of the facts: it had proceeded on the basis that Mr Carbone attended settlement and handed over the documents, and Stelli was entitled, on the unchallenged findings of Macready AsJ and by reason of s 48 of the Powers of Attorney Act 2003 (NSW), to accept the executed transfer as a discharge of Mr Despot's obligations under the contract. The subsequent revocation of the power of attorney did not affect what had occurred before revocation. No stay should be granted because Stelli identified no grounds on which the discretionary refusal of set-off might have miscarried, should not be put in a better...

Court Disposition

The plaintiff's application to reopen was refused and the third and fourth defendants' application for a stay was dismissed.

Orders

  • ["The plaintiff's application to reopen is refused and the third and fourth defendants' application for a stay is dismissed." 'The parties should bring in short minutes of order to give effect to the undertaking given by the fourth defendant.' 'If the parties cannot agree on the precise method by which Mr Despot...