Lewis v Lamb [2004] NSWCA 361

New South Wales Court of Appeal

CITATION : Lewis v Lamb [2004] NSWCA 361 HEARING DATE(S) : 29 September 2004 JUDGMENT DATE : 29 September 2004

JUDGMENT OF : Giles JA at 1; Ipp JA at 7; Tobias JA at 8 DECISION : Application for leave to appeal dismissed with costs.

CATCHWORDS : Stay of execution - whether judge's exercise of discretion miscarried - no error shown - no question of principle - leave to appeal refused. ND Burnett v Francis Industries PLC (1987) 1 WLR 802; CASES CITED : Canada Enterprises Corporation Ltd v MacNab Distilleries Ltd (1987) 1 WLR 813; Greenco Pty Ltd v Waldon Pty Ltd (Full Court of the Supreme Court of Western Australia, 10 October 1997, unreported). PARTIES : Peter Lawrence Lewis - Claimant Russell William Lamb - Opponent FILE NUMBER(S) : CA 40374/04 COUNSEL : N Cotman SC & S T Johnson - Claimant S Motbey - Opponent SOLICITORS : Kemp Strang - Claimant Lyons & Lyons, Bondi Junction - Opponent

LOWER COURT Supreme Court - Common Law Division JURISDICTION : LOWER COURT SC 109911/04 FILE NUMBER(S) : LOWER COURT Hamilton J JUDICIAL OFFICER :

OF NEW SOUTH WALES COURT OF APPEAL CA 40374/04 SC 10911/04

GILES JA IPP JA TOBIAS JA

Wednesday 29 September 2004 LEWIS v LAMB Judgment 1 GILES JA: The claimant challenged the judge's exercise of a discretion. At the heart of the claimant's submissions was that the judge paid inadequate regard to lack of reciprocity and, more specifically, to the claimant's position in balancing the positions of the parties. 2 His Honour spoke in terms of the possibility that the benefit of success in the Australian proceedings would flow to and through the trust company Nortex and Mr Lamb's company Lamru to Mr Lamb, whereby Mr Lamb would have funds to meet the New Zealand judgment. It is true that there was no specific evidence on that matter before his Honour on the application, but it was quite open to his Honour to contemplate the possibility. His Honour necessarily took account of the eventuality that Mr Lamb might not cause Lamru to devote any money it received to meeting the judgment, which was a matter on which the claimant placed particular reliance, and must necessarily also have taken account of the possibility that, because Nortex was described as being in liquidation, the channel would close or the flow would be reduced to a trickle of money. There was no error, therefore, in failing to take account of those matters. 3 His Honour was not asked to make it a condition of the stay that Mr Lamb undertake to cause Lamru to devote money it received to satisfy the New Zealand judgment, and I do not think it is open to the claimant to complain on appeal that his Honour failed to do so. 4 His Honour noted that in agreeing that the New Zealand judgment should not be enforceable until 31 March 2004, the parties anticipated that the Australian proceedings would be concluded by that date. The point was that they were content to look to that future possible outcome of the proceedings without the condition of which more than a little was made on appeal. The parties themselves accepted, in effect, that at least until 31 March 2004 the circumstances were such that the judgment should not be enforced. That was a matter relevant to the assessment made by his Honour of the respective positions, and I do not think error has been shown in the regard his Honour paid to it. 5 The cases to which we were referred, in particular Canada Enterprises Corporation Limited v MacNab Distilleries Limited (1987) 1 WLR 813, Burnett v Francis Industries PLC (1987) 1 WLR 802 and Greenco Pty Ltd v Waldon Pty Limited (Full Court of the Supreme Court of Western Australia, 10 October 1997, unreported) were all cases on very different facts from the facts of this case. The last of these cases also was concerned with a rule requiring special circumstances for a stay. On the facts in this case, in my opinion, the judge's exercise of discretion was open, and has not been shown to have miscarried. 6 In my opinion the application for leave to appeal should be dismissed with costs. 7 IPP JA: I agree. 8 TOBIAS JA: I also agree. 9 GILES JA: That will be the order. **********