CARR trading as FORSHAWS NEILL v SWART; LAWCOVER PTY LTD v SWART [2007] NSWCA 135

New South Wales Court of Appeal

CITATION: CARR trading as FORSHAWS NEILL v SWART; LAWCOVER PTY LTD v SWART [2007] NSWCA 135

HEARING DATE(S): 28 May 2007 JUDGMENT OF: Basten JA at 1

EX TEMPORE JUDGMENT DATE: 28 May 2007

DECISION: (1) Pursuant to s 135(1) of the Civil Procedure Act 2005 (NSW) and on condition that within five days LawCover pays into an interest bearing account in the name of and operated jointly by the solicitors for both LawCover and Mr Swart the sum of $1,197,558.89, together with such further amount of interest as will accrue on the judgment for the period from today until the amount is deposited in the account, the enforcement of the judgment is stayed pending the determination of the appeals by LawCover and Mr Carr in matters number 40844 and 40818 of 2007 respectively; (2) The stay of enforcement of the judgment shall include but not be limited to prohibiting Mr Swart from petitioning for a sequestration order against the estate of Mr Carr on the basis of any non-compliance with the bankruptcy notice served by Mr Swart dated 29 March 2007; (3) The costs of the motions in each of the appeals will be costs in the appeals.

CATCHWORDS: STAY of judgment - appeal pending - risk that full amount of judgment debt will not be recoverable if appeal is successful

LEGISLATION CITED: Civil Procedure Act 2005 (NSW), s 135

CASES CITED: Penrith Whitewater Stadium Ltd v Lesvos Pty Limited [2007] NSWCA 103

Malcolm Douglas Carr T/as Forshaws Neill - Appellant CA 40818; Second Respondent CA 40844 PARTIES: LawCover Pty Ltd - Appellant CA 40844; Third Respondent CA 40818 Daniel Frederick Victor Swart - First Respondent CA 40818 and CA 40844 Janet Anne Swart - Second Respondent CA 40818