Zheng v Ianni & Ors (No.5) [2021] NSWDC 604

District Court New South Wales

Medium Neutral Citation: Zheng v Ianni & Ors (No.5) [2021] NSWDC 604 Hearing dates: On the papers Date of orders: 10 November 2021 Decision date: 10 November 2021 Jurisdiction: Civil Before: Abadee DCJ Decision: See paragraph 45 Catchwords: JUDGMENTS AND ORDERS – application for temporary stay of execution of monetary judgment and costs order Legislation Cited: Civil Procedure Act 2005 (NSW) ss 58, 67, 135 Uniform Civil Procedure Rules 2005 (NSW) r 50.7 Cases Cited: Alexander v Cambridge Credit Corp (1985) 2 NSWLR 685 Chen v Lym International Pty Ltd [2009] NSWCA 121 Zheng v Ianni & Ors (No.3) [2021] NSWDC 521 Zheng v Ianni & Ors (No.4) [2021] NSWDC 559 Texts Cited: Ritchie's Uniform Civil Procedure (NSW) (LexisNexis Australia) Category: Procedural rulings Parties: Buzhong Zheng (plaintiff) Najib Daoud (third defendant) Leila Daoud (fourth defendant) Fred Daoud (fifth defendant) Representation: Counsel: Mr J Phillips SC with Mr L Robison for the plaintiff Mr G Khoury (solicitor advocate) for the third and fourth defendants No appearance for the fifth defendant

Solicitors: MGL Lawyers for the plaintiff George Khoury & Co for the third and fourth defendants File Number(s): 2019/00181425 Publication restriction: Nil

Judgment

Background 1. On 30 September 2021, I delivered reasons for judgment in which the plaintiff obtained a monetary judgment in the sum of $317,180 against the third and fourth defendants [1] . On 18 October 2021, I determined that the third and fourth defendants should pay a gross lump sum for costs in the amount of $190,000 [2] . 2. By a notice of motion dated 28 October 2021, the third and fourth defendants (the applicants) applied for a temporary stay of these orders until 30 December 2021. They have filed a notice of intention to appeal. The purpose of the stay is hold the status quo until the date for filing of a notice of appeal has passed. 3. The motion was supported by an affidavit of the third defendant, Mr Daoud, who also represented his authority to depose the affidavit on behalf of his wife, the fourth defendant, Mrs Daoud. 4. As was noted in the Liability Judgment and Costs Judgment, the applicants are pensioners. They were represented pro bono, by Counsel at the trial. 5. The plaintiff, the respondent on the motion, opposed the application. The respondent relied on two affidavits of his solicitor, Mr Ko, who affirmed an affidavit dated 2 November 2021 and one dated 8 November 2021. 6. After the Court had received the stay application, I arranged for my Associate to email the legal practitioners for the parties certain directions for the exchange of evidence and submissions and provided a hearing date for oral argument to occur 'remotely'. (Since early November, I have been sitting in the Court's criminal jurisdiction in Penrith). In response to that email communication, it became apparent that the nominated date for argument did not suit the convenience of the applicants, or their representative. No other suitable date was suggested. Given this indication, I arranged for further inquiry to be made of the parties as to whether it was necessary to conduct a hearing (remotely) of the application or whether it would be sufficient to determine the application on the papers, being the written submissions of the parties supplied to the Court in response to the timetable that was set. Senior and Junior Counsel for the respondent to the application argued that it was appropriate for the application to be determined on the papers and the legal representative for the applicants expressed his clients' position not to oppose that course.