Rabah Enterprises Pty Ltd v LCM Operations Pty Ltd [2023] NSWCA 203

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Rabah Enterprises Pty Ltd v LCM Operations Pty Ltd [2023] NSWCA 203 Hearing dates: 28 August 2023 Date of orders: 30 August 2023 Decision date: 30 August 2023 Before: Basten AJA Decision: (1) Until the 28th day after the entry of orders disposing of the appeal, stay: (a) order 1 made by Rees J on 2 June 2023 as varied on 28 June 2023; (b) order 3 made by Rees J (with respect to the costs of the trial) on 2 June 2023 as varied on 28 July 2023; and (c) the writ for the levy of property issued on 22 June 2023. (2) Order 1 will remain in operation subject to compliance by the appellant with the following conditions: (a) the appellant shall not sell, dispose of, transfer, deal with, diminish the value of, or encumber any interest it has in lots 6, 13-14 and 37-51 of Strata Plan 93010; (b) the appellant shall not sell, dispose of, transfer, deal with, diminish the value of, or encumber any interest it has in any jewellery, watches and diamonds (valuables) acquired from the drawdown of the loan facility, the subject of the facility agreement with the National Australia Bank dated 28 June 2023, save that the appellant may sell or dispose of the valuables and pay the proceeds of sale into its NAB bank account, and funds in that account may not be transferred or expended during the period of the stay except to pay legal fees incurred in relation to the appeal or to pay into Court the sum identified in (c) below; (c) the appellant shall no later than close of business on Wednesday, 6 September 2023, pay into Court the sum of $495,000; and (d) the appellant is to comply with any direction given by a judge or the Registrar for the expeditious hearing and disposal of the appeal. (3) The costs of the motion shall be costs in the appeal. (4) Grant the parties liberty to apply to a judge of the Court on 48 hours' notice. (5) Otherwise dismiss the appellant's notice of motion filed on 21 August 2023. Catchwords: PRACTICE and PROCEDURE – appeal – application for stay pending hearing of appeal – appellant owned 18 lots in strata plan subject to mortgage to bank – appeal reasonably arguable – appeal likely to be heard and determined in four months – attempts to sell lots likely to trigger default on mortgage – sales not likely to be completed before appeal determined – stay granted subject to conditions designed to protect value of appellant's assets Legislation Cited: Civil Procedure Act 2005 (NSW), s 135 Uniform Civil Procedure Rules 2005 (NSW), r 51.44 Cases Cited: Kalifair Pty Ltd v Digi-Tech (Australia) Limited (2002) 55 NSWLR 737; [2002] NSWCA 383 Port Macquarie Hastings Council v Diveva Pty Ltd t/as Mid Coast Road Services [2017] NSWCA 4 Category: Procedural rulings Parties: Rabah Enterprises Pty Ltd (Appellant) LCM Operations Pty Ltd (Respondent) Representation: Counsel: C Ward SC / M Youssef (Appellant) D Krochmalik (Respondent)