PINKER v MONGER MOLLOY THYER SERVICES PTY LTD [1993] NSWCA 212

PINKER v MONGER MOLLOY THYER SERVICES PTY LTD

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA 18 October 1993

[1993] NSWCA 212

Clarke JA. In this matter there are two motions which have been before the court; one a motion for a stay of execution and the other a motion for an expedition of the appeal. I have already dealt with the motion for expedition and I am presently only concerned with the stay application.

His Honour Hulme J directed the entry of judgment against the claimants, who were the defendants in the first instance, in the sum of $426,911. The claim arose from a dispute between the claimants and a company Monger Molloy Thyer Services Proprietary. In a real sense, although perhaps not a legal sense, the company was a partnership in which the two claimants were partners together with Mr Monger and Mr Thyer. They were the more recent partners but in due course they decided to go their own way and this they did.

The difficulty was, according to the remaining partners, that they took as their clients persons who were the clients of Monger Molloy Thyer Services Proprietary. It was alleged at first instance that in acting in the way they did they had been in breach of their fiduciary duty to the company and his Honour accepted this claim and consequently found for the plaintiff and directed entry of judgment that I have mentioned.

Disputes of this nature between professional persons almost invariably lead to unhappy and complicated circumstances, benefiting no one. This seems to be the case here as pendingthe hearing of the appeal the plaintiff, which is the opponent to the motion, is trading under significant difficulties as a result of the action of the claimants and the claimants themselves are in a somewhat difficult financial position.

It is true that the successful party is prima facie entitled to the fruits of its victory but the overall obligation cast upon a court in an application of this nature is to make such order as accords justice to both parties, taking into account such matters as the fact that one party has won the case and whether the failure to grant a stay would lead to the collapse of the appeal.