Misan v Markham Real Estate Partners (KSW) Pty Ltd (No 2) [2022] NSWCA 155

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Misan v Markham Real Estate Partners (KSW) Pty Ltd (No 2) [2022] NSWCA 155 Hearing dates: 11 August 2022, written submissions 12 and 15 August 2022 Decision date: 18 August 2022 Before: Leeming JA Decision: Orders made during the hearing on 11 August 2022: 1. Paragraph 15 of the notice to produce dated 8 July 2022 issued to the appellant by the respondent is set aside. 2. Paragraphs 1-6 inclusive, 8, 9 and 11 of the subpoena issued by the respondent to Mr Timothy James O'Connor returnable on 20 July 2022 be set aside. Order made on 18 August 2022: Order that the appellant's costs of the notices of motion dated 19 July 2022 and 11 August 2022, which are to be paid by the respondent in accordance with order 3 made on 11 August 2022, are payable on an indemnity basis. Catchwords: PRACTICE – appeals – stay of execution pending appeal – subpoena and notice to produce issued by respondent opposing stay of execution – notice sought production of costs estimate of appeal –production of documents bearing on financial position of appellant's partner – documents of no apparent relevance COSTS – indemnity costs – unfounded opposition to stay of execution on terms – significance of s 56 of Civil Procedure Act 2005 (NSW) – insignificance of respondent's broader commercial interests – indemnity costs ordered Legislation Cited: Legal Profession Uniform Law 2014 (NSW), s 174 Civil Procedure Act 2005 (NSW), s 56 Cases Cited: Adeels Palace Pty Ltd v Moubarak; Adeels Palace Pty Ltd v Najem (No 2) [2009] NSWCA 130 Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685 Bank Nationalisation case (1949) 79 CLR 497 Cook v Pasminco Pty Ltd (No 2) (2000) 107 FCR 44 CSR Ltd v Eddy (2008) 70 NSWLR 725; [2008] NSWCA 83 Misan v Markham Real Estate Partners (KSW) Pty Ltd [2022] NSWCA 154 Rinehart v Welker (2012) 83 NSWLR 347; [2012] NSWCA 1 Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 Category: Procedural rulings Parties: Paul Gerald Henry Misan (Appellant/Applicant) Markham Real Estate Partners (KSW) Pty Ltd (Respondent) Representation: Counsel: P Horobin (Applicant) E Hyde (Respondent)