Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1472

New South Wales Supreme Court

CITATION : Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1472

HEARING DATE(S) : 18 December 2006 JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 12/18/2006

DECISION : Stay refused.

CATCHWORDS : PROCEDURE – Stay – stay pending appeal judgment for damages and mandatory injunction – where an arguable ground of appeal – where no evidence of inconvenience or hardship to defendant/applicant in obtaining restitution if appeal succeeds.

Alexander v Cambridge Credit Corporation Limited (Receivers Appointed) (1985) 2 NSWLR 685 CASES CITED : Park v Brothers [2003] NSWSC 1054 Seiwa Australia Pty Limited v The Owners Strata Plan 35042 [2006] NSWSC 1157

PARTIES : Seiwa Pty Ltd (plaintiff) Owners Strata Plan 35042 (defendant)

FILE NUMBER(S) : SC 4205/06

COUNSEL : Mr M W Young (plaintiff) Mr M A Bradford (defendant)

SOLICITORS : Dixon Holmes du Pont Lawyers (plaintiff) Alex Ilkin & Co (defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BRERETON J

Monday 18 December 2006

4205/05 Seiwa Australia Pty Limited v The Owners Strata Plan 35042 JUDGMENT (ex tempore) 1 HIS HONOUR: On 6 November I gave judgment in these proceedings [Seiwa Australia Pty Limited v The Owners Strata Plan 35042 [2006] NSWSC 1157]. I ordered that by 6 February 2007, the defendant properly maintain and keep in a state of good and serviceable repair the common property in the strata plan by repairing the waterproof membrane on the patio of the plaintiff's unit to the standard that a repeat water test, conducted under specified conditions, resulted in no penetration of water into unit 14. I gave judgment that the defendant pay the plaintiff $150,000 damages for loss of use of the unit for the period August 2004 to February 2007, and reserved liberty to the plaintiff to apply, after 6 February 2007, for dissolution of the mandatory injunction and substitution of a judgment for further damages, in lieu of that injunction, of $250,000, representing the impact on the value of the unit of the defective water membrane. I ordered that the defendant pay the plaintiff's costs. 2 The defendant has filed a Notice of Appeal without appointment (a so-called "holding appeal"). By notice of the motion filed in Court today, the defendant seeks a stay of those orders, both in respect of the monetary judgment and in respect of the mandatory injunction.