NSW Caselaw
New South Wales Court of Appeal
CITATION: ACN 002 306 283 Pty Ltd (formerly known as Moraitis Fresh Packaging (NSW) Pty Ltd (ACN 002 306 283) v Fresh Express Australia Pty Ltd (ACN 065 867 218) [2010] NSWCA 216
HEARING DATE(S): 23 August 2010
JUDGMENT DATE: 27 August 2010
JUDGMENT OF: McColl JA
1. Order that the judgment given and the orders made by McLaughlin AsJ on 2 July 2010 be stayed until the determination of the appeal in this Court, on condition that Moraitis pay into Court the sum of $450,000 plus interest as at the date of payment in respect of the judgment now appealed from. 2. Order that that the stay of the enforcement of the judgment shall include, but not be limited to, prohibiting Fresh Express from petitioning for the winding up of Moraitis on the basis of any non-compliance with the statutory demand served by Fresh Express on the appellant dated 5 August 2010 claiming an amount of $701,558.67, to the extent it claims an amount representing the judgment below and interest thereon. DECISION: 3. Order Moraitis to furnish security for the costs of Fresh Express of and incidental to the appeal in the amount of $40,000. 4. Stay the proceedings in this Court until such security is provided. 5. Costs of the appellant's and respondent's notices of motion respectively to be costs in the appeal.
CATCHWORDS: PROCEDURE - judgments and orders - stay pending appeal - no question of principle
LEGISLATION CITED: Corporations Act 2001 (Cth)
CATEGORY: Procedural and other rulings
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; (2002) 55 NSWLR 737 Moraitis Fresh Packaging (NSW) Pty Ltd v Fresh Express Australia Pty Ltd [2010] NSWSC 704 CASES CITED: Moraitis Fresh Packaging (NSW) Pty Ltd v Fresh Express Australia Pty Ltd [2007] NSWSC 626; (2007) ANZ ConvR 383 Moraitis Fresh Packaging (NSW) Pty Ltd v Fresh Express (Australia) Pty Ltd [2008] NSWCA 327 New South Wales Bar Association v Stevens [2003] NSWCA 95; (2003) 52 ATR 602 Whitlam v Australian Securities and Investments Commission [2002] NSWCA 312; (2003) 43 ACSR 73
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