HOWELL v FINE REAL ESTATE NETWORK PTY LIMITED [1997] NSWCA 155

HOWELL v FINE REAL ESTATE NETWORK PTY LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA 10 March 1997

[1997] NSWCA 155

Sheller JA. On 4 November 1996 the Court, comprising Mahoney JA and Simos AJA, dismissed an application for a stay of proceedings upon judgment brought by the present claimant, Paul Roch Howell.

The application was in respect of orders made by the Chief Judge in Equity on 30 August 1996. On that day his Honour ordered, inter alia, that Mr Howell pay to the plaintiff the sum of $ 445,395. The application was for a stay pending the hearing of an appeal by Mr Howell from the Chief Judge's decision. The matter was before the Court following upon a dismissal of an application for a stay by Registrar Jupp on 28 October 1996.

On 7 February 1997 the claimant, Mr Howell, again filed an application that the judgment of the Chief Judge of 30 August 1996 in the sum of $445,395, plus costs, be stayed and an alternative order was sought that the respondents provide security.

This application has come in the ordinary way before a single Judge of the Court. The claimant bases this application upon what is said to be a change of circumstances since November 1996. The claimant says that a reason why the previous application was refused was that the proceeds of the judgment, if paid to the respondents/opponents to this application, would have gone to meet indebtedness to Westpac Banking Corporation, to which the claimant and the opponents were jointly indebted under a guarantee.

Thus, if because the respondents were unable to pay the indebtedness to the bank by not receiving the fruits of the present judgment, the appellant/claimant would have been obliged to pay the amount of the indebtedness. It appears that the indebtedness to Westpac has now been discharged except perhaps of an amount of some $ 40,000 which is in dispute.