Heckenberg & Ors v Fetterplace [2008] NSWCA 247

New South Wales Court of Appeal

CITATION: Heckenberg & Ors v Fetterplace [2008] NSWCA 247

HEARING DATE(S): 29 September 2008 JUDGMENT OF: McColl JA

EX TEMPORE JUDGMENT DATE: 29 September 2008

DECISION: Order 2 in the Amended Notice of Motion is refused.

CATCHWORDS: PRACTICE AND PROCEDURE – stay application – multiple appellants – personal and corporate – evidence of impecuniosity of corporate appellant only – evidence directors had assets sufficient to secure judgment – no offers to preserve status quo by personal appellants or by directors of corporate appellant – stay refused.

CATEGORY: Procedural and other rulings

CASES CITED: Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383

Daniel William Heckenberg (first applicant/appellant) PARTIES: Keith John Stewart Heckenberg (second applicant/appellant) Dankeith Homes (third applicant/appellant) Katherin Marie Fetterplace (respondent)

FILE NUMBER(S): CA 40273/08

COUNSEL: G M Colman (first - third applicants/appellants) M Izzo (respondent)

SOLICITORS: Noel F Bracks & Co (first - third applicants/appellants) Bartier Perry (respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 795/07

LOWER COURT JUDICIAL OFFICER: Balla DCJ

LOWER COURT DATE OF DECISION: 3 June 2008

- 7 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40273/08

McCOLL JA

Monday 29 September 2008 Daniel William Heckenberg & Ors v Katherine Marie Fetterplace Judgment 1 McCOLL JA: By Amended Notice of Motion filed on 29 September 2008 the appellants, Daniel and Keith Heckenberg and Dankeith Homes Pty Limited, seek a stay of the judgment of Balla DCJ until the hearing of the appeal or further order. 2 Mr G Colman of counsel appeared for the applicants. Mr M Izzo of counsel appeared for the respondent. 3 The proceedings concern a contract for the sale of land entered into between the appellants as purchasers, and the respondent as vendor, of a property in Ingleburn. Contracts were exchanged on 8 March 2005. There were two buildings on that property, one used as a residence, another as a veterinary surgery. Special condition 37 of the contract provided: "The vendors shall have the right (but not the obligation) to take inclusions and/or improvements from the property prior to settlement and without limiting house/surgery paving/fencing on the following terms: (i) All removal work to be done at the vendor's expense. (ii) No part of the site is to be left unsafe at the conclusion of the removal of any part or parts of the building. (iii) No buildings are to be left in a partly demolished condition such as they are a hazard to the purchaser or its servants or agents. (iv) The vendor will have no rights to enter the property after settlement.