Mortimer v Ah Sam [2021] NSWSC 585

Supreme Court New South Wales

Medium Neutral Citation: Mortimer v Ah Sam [2021] NSWSC 585 Hearing dates: 24 May 2021 Date of orders: 24 May 2021 Decision date: 24 May 2021 Jurisdiction: Equity - Expedition List Before: Sackar J Decision: See paras [12]-[13] Catchwords: CIVIL PROCEDURE — Stay of proceedings — Pending appeal Category: Consequential orders Parties: Christopher James Mortimer (plaintiff) Julius Iulai Ah Sam (defendant) Representation: Counsel: Mr K P Tang (plaintiff) No representation

Solicitors: Russell J Baxter (plaintiff) Self represented (defendant) File Number(s): 2019/197941

Judgment – EX TEMPORE 1. This matter was again before me this afternoon. All parties attended by telephone. 2. Mr Ah Sam had sought relief under a Notice of Motion dated 19 May 2021 (unfiled) and an affidavit in support seeking a stay of the proceedings pending appeal. 3. The history of this matter is as follows. I gave judgment in this matter on 9 December 2020. Mr Ah Sam indicated on 18 December when the matter WAS next before me that he wished to appeal and sought a stay of my judgment until 5 February 2021. I granted that application. 4. On 5 February 2021, the matter was next before me for directions and short minutes of order were circulated by the plaintiff. 5. The matter was next before me on 12 February 2021 and I made numerous orders consequent upon my judgment which included a declaration and other orders including costs and that the writ of possession lie in the registry. I also ordered that the orders be stayed until 5 March 2021. 6. The matter was next before me on 14 February 2021 but there was no appearance by Mr Ah Sam by telephone. 7. The matter was next before me on 8 March 2021 and although numerous attempts were made to contact him, Mr Ah Sam did not telephone in but in any event I extended the stay until the 12th March. 8. On 15 March 2021, Mr Ah Sam indicated he was having difficulties filing his notice of appeal and I granted a further stay of my orders until 19 March. 9. The matter was next before me on 12 May for directions. 10. The matter was next before me on 14 May. Mr Ah Sam explained he was still having difficulties with the registry and he was seeking a waiver of the filing fees. The matter was re-listed before me on 21 May. On 21 May I stood the matter over to 24 May. 11. On 24 May, after some delay, Mr Ah Sam was finally accessible by telephone. 12. He referred to his Notice of Motion and application for stay pending appeal. In my view, given the long history of this matter and notwithstanding the difficulties Mr Ah Sam has had with the appeal process and the filing of documents I do not propose to give him any further time beyond 5pm this Friday 28 May 2021. 13. He informed me that he has now received a sealed copy of his Notice of Appeal. I indicated to him that he should immediately make contact with the registrar of the Court of Appeal so that the matter could be progressed there and for him to make a further application for a stay if he chose to do so.