Chen v Lym International; Chen v Marcolongo [2009] NSWCA 121

New South Wales Court of Appeal

CITATION: Chen v Lym International; Chen v Marcolongo [2009] NSWCA 121 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 4 May 2009

JUDGMENT DATE: 26 May 2009

JUDGMENT OF: Beazley JA at 1

DECISION: 1. Continue the stay ordered in this matter until further order; 2. Direct the parties to file any submissions as to the appointment of a receiver of the property or as to the ongoing marketing of the property pending the determination of the appeal by 4 pm, Tuesday 2 June. Any submission is to be delivered to my associate by that time.

CATCHWORDS: PROCEDURE – application for stay of judgment pending determination of appeal – trial judge ordered the defendant to transfer property –parties dispute whether substantial stamp duty will need to be paid upon the transfer of the property – parties dispute whether substantial stamp duty will need to be paid upon the re-transfer of the property if the defendant's appeal is successful – whether the defendant's appeal has reasonable prospects of success – whether the balance of convenience favours the grant of a stay – appropriate orders to make regarding management and marketing of property in the interim of the application for stay and the determination of the defendant's appeal

Conveyancing Act 1919, s 37A LEGISLATION CITED: Duties Act 1997 Legal Profession Act 2004, s 347

Alexander v Cambridge Credit (1985) 2 NSWLR 685 Dadeeton Pty Ltd v Commissioner of State Taxation (2004) 88 SASR 109 CASES CITED: Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Sportscorp Australia Pty Ltd v Chief State Commissioner of State Revenue [2004] NSWSC 1029; (2004) 213 ALR 795 Vaughan v Dawson [2008] NSWCA 169