Misan v Markham Real Estate Partners (KSW) Pty Ltd [2022] NSWCA 154

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Misan v Markham Real Estate Partners (KSW) Pty Ltd [2022] NSWCA 154 Hearing dates: 11 August 2022 Decision date: 11 August 2022 Before: Leeming JA Decision: 1. Note that Mr Misan undertakes to the Court not to sell or further encumber his interests in units 104 and 105 of his address except to the extent necessary to meet his legal costs of this appeal, stay orders 1, 2 and 3 made on 17 June 2022 in the court below until 7 days after the determination of this appeal. 2. The writ for levy of property filed in these proceedings on 9 August 2022 is set aside and to the extent that there is a notice of motion filed in these proceedings or in the proceedings below concerning such writ it is dismissed. 3. The respondent pay the appellant's costs of the amended notice of motion dated 11 August 2022 and the notice of motion filed 19 July 2022. 4. Direct the respondent to supply by email to my Associate by 4pm 12 August 2022 written submissions against the proposition that those costs should be on an indemnity basis. 5. Direct the applicant to file on or before 16 August 2022 any submissions in response. 6. I reserve the question of whether costs should be on the ordinary or the indemnity basis. 7. Direct the appellant to file and serve his written submissions on the appeal on or before 25 August 2022. 8. Direct the respondent to file and serve its submissions on the appeal on or before 22 September 2022. Catchwords: PRACTICE – appeals – stay of execution – whether appellant had made out appropriate case for a stay – appeal brought promptly – whether appeal reasonably arguable – undertaking not to sell or encumber real property – whether judgment substantially exceeded appellant's assets – where respondent threatened to execute judgment – where respondent had in breach of inter partes agreement taken steps to levy execution – stay ordered on appellant's undertaking Legislation Cited: Conveyancing Act 1919 (NSW), s 129 Corporations Act 2001 (Cth), s 440B Cases Cited: Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 Kalifair Pty Ltd v Digi Tech (Australia) Limited [2002] NSWCA 383; (2002) 55 NSWLR 737 Markham Real Estate Partners (KSW) Pty Ltd v Misan [2022] NSWSC 733 Port Macquarie Hastings Council v Diveva Pty Ltd t/a Midcoast Road Services [2017] NSWCA 4 Category: Procedural rulings Parties: Paul Gerald Henry Misan (Appellant) Markham Real Estate Partners (KSW) Pty Ltd Representation: Counsel: P Horobin (Appellant) E Hyde (Respondent)