David v Kazal [2019] NSWSC 1763

David v Kazal [2019] NSWSC 1763

The Court refused an unconditional stay pending the United States appeal because the plaintiff had properly invoked the Court's jurisdiction and was entitled, subject to any penal objection, to pursue judgment based on the US Judgments rather than simply wait for a foreign appeal that could take up to two years. The defendants' appeal rights could be protected by staying enforcement if judgment were entered. Security for costs was ordered because the plaintiff was ordinarily resident in California, had no identified Australian assets, and the defendants might incur costs recoverable if the US appeal succeeded.

Jurisdiction
Australia
Judgment Date
10 December 2019
Procedural Posture
Common Law Proceedings for Recognition and Enforcement of Foreign Judgments / Defendants' Notice of Motion for Security for Costs and Stay Pending Determination of United States Appeals
Outcome
Security for costs ordered; proceedings to be stayed if security is not provided by the specified date; defendants' notice of motion otherwise dismissed; costs reserved; further directions made.
Legal Topics
['recognition and Enforcement of Foreign Judgments at Common Law' 'stay Pending Foreign Appeal' 'security for Costs' 'punitive Damages and Penal Character']
['private International Law' 'civil Procedure' 'costs'] ['recognition and Enforcement of Foreign Judgments at Common Law' 'stay Pending Foreign Appeal' 'security for Costs' 'punitive Damages and Penal Character']

Case Brief

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Procedural Posture

Common Law Proceedings for Recognition and Enforcement of Foreign Judgments / Defendants' Notice of Motion for Security for Costs and Stay Pending Determination of United States Appeals

Legal Issues

  1. 1 ['Whether proceedings for recognition and enforcement of the US Judgments should be stayed pending determination of appeals in the United States Court of Appeals for the Ninth Circuit.' 'Whether punitive damages awarded in the US Judgments might be excluded from a judgment of this Court on the basis that they are penal.' 'Whether the plaintiff, being ordinarily resident outside Australia, should provide security for costs and in what amount.']

Ratio Decidendi

The Court refused an unconditional stay pending the United States appeal because the plaintiff had properly invoked the Court's jurisdiction and was entitled, subject to any penal objection, to pursue judgment based on the US Judgments rather than simply wait for a foreign appeal that could take up to two years. The defendants' appeal rights could be protected by staying enforcement if judgment were entered. Security for costs was ordered because the plaintiff was ordinarily resident in California, had no identified Australian assets, and the defendants might incur costs recoverable if the US appeal succeeded.

Court Disposition

Security for costs ordered; proceedings to be stayed if security is not provided by the specified date; defendants' notice of motion otherwise dismissed; costs reserved; further directions made.

Orders

  • ['Order the plaintiff to provide security for costs by paying into Court or by another method acceptable to the defendants the sum of $20,000.' 'If security is not provided as directed by 23 December 2019, stay the proceedings from 24 December 2019.' "Otherwise dismiss the defendants' notice of motion filed on 16...