Portaccomm Building Systems Pty Ltd v Southern Sheet & Coil Pty Ltd [2013] NSWCA 123

Portaccomm Building Systems Pty Ltd v Southern Sheet & Coil Pty Ltd [2013] NSWCA 123

The stay application was refused because, on the material before the Court, the appellants' prospects of success on appeal were poor to non-existent and their evidence of financial position was inadequate. The first appellant had not shown any factual basis for the claimed credit, while the respondent's evidence supported the conclusion that the entry was a bad debt write-off. The second appellant had poor prospects of showing that the guarantee was limited by amount or product type given the terms of the guarantee and the primary judge's findings. Leave to amend to seek instalment payments was refused because the appellants had not used the objection procedure specifically provided by...

Jurisdiction
Australia
Judgment Date
14 May 2013
Procedural Posture
Application for Stay of Execution of Judgments Pending Appeal and Application to Amend Notice of Motion to Seek Payment by Instalments / Court of Appeal Motion Pending Appeal From Southern Sheet & Coil Pty Limited V Portaccomm Building Systems Pty Ltd [2013] NSWSC 38
Outcome
Leave to further amend the Amended Notice of Motion was refused, and the appellants' Amended Notice of Motion for a stay was dismissed with costs.
Legal Topics
['stay of Execution Pending Appeal' 'prospects of Success on Appeal' 'balance of Convenience' 'payment of Judgment Debt by Instalments' 'amendment of Notice of Motion' 'guarantee Liability' 'credit for Alleged Bad Debt Write Off']
['civil Procedure' 'contracts' 'guarantees'] ['stay of Execution Pending Appeal' 'prospects of Success on Appeal' 'balance of Convenience' 'payment of Judgment Debt by Instalments' 'amendment of Notice of Motion' 'guarantee Liability' 'credit for Alleged Bad Debt Write Off']

Case Brief

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Procedural Posture

Application for Stay of Execution of Judgments Pending Appeal and Application to Amend Notice of Motion to Seek Payment by Instalments / Court of Appeal Motion Pending Appeal From Southern Sheet & Coil Pty Limited V Portaccomm Building Systems Pty Ltd [2013] NSWSC 38

Legal Issues

  1. 1 ['Whether execution of judgments entered against the appellants should be stayed pending appeal.' 'Whether the first appellant had sufficient prospects of establishing entitlement to a credit of $653,701.88 plus interest against the judgment debt.' 'Whether the second appellant had sufficient prospects of challenging liability under the personal guarantee on the basis of a credit limit or limitation to BlueScope steel coil.' "Whether the appellants' evidence of financial position justified a stay." 'Whether the appellants should be granted leave to further amend their Amended Notice of Motion to seek orders under Uniform Civil Procedure Rules 2005 r 37.2 for monthly instalment payments.']

Ratio Decidendi

The stay application was refused because, on the material before the Court, the appellants' prospects of success on appeal were poor to non-existent and their evidence of financial position was inadequate. The first appellant had not shown any factual basis for the claimed credit, while the respondent's evidence supported the conclusion that the entry was a bad debt write-off. The second appellant had poor prospects of showing that the guarantee was limited by amount or product type given the terms of the guarantee and the primary judge's findings. Leave to amend to seek instalment payments was refused because the appellants had not used the objection procedure specifically provided by...

Court Disposition

Leave to further amend the Amended Notice of Motion was refused, and the appellants' Amended Notice of Motion for a stay was dismissed with costs.

Orders

  • ['Leave refused to the appellants to further amend their Amended Notice of Motion filed on 13 May 2013.' "Dismiss with costs the appellants' Amended Notice of Motion filed on 13 May 2013."]