Almona Pty Ltd v Parklea Corporation Pty Ltd (No 6) [2020] NSWSC 1895

Supreme Court New South Wales

Medium Neutral Citation: Almona Pty Ltd v Parklea Corporation Pty Ltd (No 6) [2020] NSWSC 1895 Hearing dates: 5 June 2020, final submissions received 19 November 2020 Date of orders: 21 December 2020 Decision date: 21 December 2020 Jurisdiction: Equity Before: Robb J Decision: Order that order 1 made by the Court on 5 June 2020 be stayed until the date on which the Court of Appeal proceeding 2020/197106 is determined. Catchwords: CIVIL PROCEDURE — Stay of proceedings pending appeal – where orders are made against two defendants that they pay the same amount of damages to the plaintiff –– where both defendants apply for a stay of execution of the judgment pending the determination of an appeal –– where one of the defendants is primarily liable to the plaintiff –– where that defendant was deregistered in the British Virgin Islands before the hearing commenced –– where the registration of that defendant was reinstated after judgment was given –– where the effect of reinstatement is that the defendant is deemed always to have existed –– where although reinstated that defendant was in the course of being wound up –– where the full amount of the judgment is paid into court on behalf of the defendant who is primarily liable as a condition of a stay of execution of the judgment against that defendant by consent of the plaintiff –– where the payment was not made from the funds of that defendant –– where the other defendant has reasonable prospects of success on appeal – where the financial circumstances of the plaintiff give rise to a real risk that a successful appellant will not be able to recover any amount of the judgment paid to the plaintiff –– unqualified stay of execution of judgment granted to defendant not primarily liable pending determination of appeal Legislation Cited: Civil Procedure Act 2005 (NSW) Cases Cited: Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 Almona Pty Ltd v Parklea Corporation Pty Ltd [2019] NSWSC 1868 Almona Pty Ltd v Parklea Corporation Pty Ltd (No 2) [2020] NSWSC 167 Almona Pty Ltd v Parklea Corporation Pty Ltd (No 3) [2020] NSWSC 226 Almona Pty Ltd v Parklea Corporation Pty Ltd (No 4) [2020] NSWSC 553 Almona Pty Ltd v Parklea Corporation Pty Ltd (No 5) [2020] NSWSC 1514 International Bulk Shipping and Services Ltd v Minerals and Metals Trading Corporation of India [1996] 1 All ER 1017 In the matter of Dyamond Developments Pty Ltd (in liq) [2020] NSWSC 591 Kingston Futures Pty Ltd v Waterhouse (2013) 1 Qd R 507; [2012] QSC 212 Stergiou v Citibank Savings Ltd [2005] ACTCA 15 TCN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381; [1999] NSWCA 104 Woolworths Ltd v Strong (No 2) (2011) 80 NSWLR 445; [2011] NSWCA 72 Category: Procedural and other rulings Parties: Almona Pty Ltd (plaintiff) Parklea Corporation Pty Ltd (first defendant) PT Limited (third defendant) Representation: Counsel: D Williams SC / E Bishop / ND Riordan (plaintiff) K Andronos SC / S Keizer (first defendant) EAJ Hyde / T Epstein (amicus curiae and later second defendant) J Taylor (third defendant)