The Cleaning Doctor NSW Pty Ltd v Fonseca [2022] NSWCA 157

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: The Cleaning Doctor NSW Pty Ltd v Fonseca [2022] NSWCA 157 Hearing dates: 09 August 2022 Decision date: 09 August 2022 Before: Leeming JA Decision: 1. Noting the provision of the usual undertaking by each of the appellants, I further vary order 7(a) made in the Equity Division on 5 April 2022 by deleting "9am on 11/08/2022" and substituting "until further order" so that the result relevantly is: "(7) Orders that the operation of orders 4, 5 and 6 above are stayed until and including (a) until further order if a notice of appeal is filed by the plaintiffs on or before 8 April 2022…". 2. I direct the appellants or either of them to pay into court the sum of $55,000 within 14 days of today as security for the respondents' costs of the appeal. 3. I order that the appeal be stayed in the event that order 2 is not complied with, and in such circumstance I grant liberty to apply on 3 business days' notice. 4. I otherwise dismiss the notice of motion filed 29 April 2022. 5. I direct the respondents to file and serve their written submissions on the appeal by Friday 19 August 2022. 6. I stand the appeal into the Registrar's List on Wednesday 24 August 2022 with a view to its being allocated a hearing date and on the basis of my tentative view that it is a 1 day appeal but leaving it to the parties to contend if so advised in light of the respondents' submissions that it is a 2 day appeal. 7. The appellants to have costs of both motions on an ordinary basis up to 22 June 2022 and on an indemnity basis thereafter. Catchwords: PRACTICE – appeals – stay of execution – whether appropriate case made out – where undertaking and security provided – where appeal to be heard in near future – where respondents had failed to apply over previous two years to vary interlocutory regime based on changed circumstances – stay continued PRACTICE – appeals – security for costs – respondents sought substantial security – respondents claim to have spent more costs on opposing stay of execution and in support of application for security for costs than in defending the appeal – respondents sought to divide appeal into that brought by first appellant and that brought by second appellant – respondents' submission misconceived – respondents substantially unsuccessful in opposition – security ordered in amount proffered by appellants Legislation Cited: Supreme Court Act 1970 (NSW), s 46 Cheques Act 1986 (Cth) Cases Cited: Alexander v Cambridge Credit Corporation Ltd (Receivers appointed) (1985) 2 NSWLR 685 Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383 Murray Darling Basin Authority v Doyle's Farm Produce Pty Ltd [2021] NSWCA 191 The Cleaning Doctor NSW Pty Ltd v Fonseca [2022] NSWSC 253 The Cleaning Doctor NSW Pty Ltd v Fonseca (No 2) [2022] NSWSC 389 Yeshiva Synagogue Inc v Karimbla Properties (No 10) Pty Ltd [2017] NSWCA 331 Category: Procedural rulings Parties: The Cleaning Doctor NSW Pty Ltd (ACN 139 483 926) (First Appellant) Ali Itawi (Second Appellant) Jeffrey Fonseca (First Respondent) Orlando Fonseca (Second Respondent) Vilma Fonseca (Third Respondent) Joselyn Fonseca (Fourth Respondent) 7/49-51 Stanley Street Pty Ltd (Fifth Respondent) 147 Holt Road Pty Ltd (ACN 602 121 404) (Sixth Respondent) Representation: Counsel: M Ashurst SC, Q Rares (Appellants) F Carnovale (Respondents)