Grave v Blazevic Holdings Pty Ltd [2010] NSWCA 200

New South Wales Court of Appeal

CITATION: Grave v Blazevic Holdings Pty Ltd [2010] NSWCA 200 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 9 August 2010

JUDGMENT DATE: 9 August 2010

JUDGMENT OF: Hodgson JA

EX TEMPORE JUDGMENT DATE: 9 August 2010

DECISION: 1. The notice of motion filed 26 July 2010 is dismissed with costs. 2. The stay ordered by Young JA on 12 July 2010 is reinstated conditionally on the sum of $48,000 being paid to the respondent on or before 23 August 2010. If that money is not paid by that date, the stay is lifted and the judgment can be enforced.

CATCHWORDS: PROCEDURE – Stay – Notice of Motion seeking variation of order – Whether it should be adjourned or dismissed.

LEGISLATION CITED: Supreme Court Act s 46 Uniform Civil Procedure Rules rule 51.58

CATEGORY: Procedural and other rulings

PARTIES: Warwick Sutton GRAVE (applicant) BLAZEVIC HOLDINGS PTY LTD (ACN 106 372 123) (respondent)

FILE NUMBER(S): CA 2009/324672

COUNSEL: D HAND (applicant) M LOZINA (respondent)

SOLICITORS: Swaab Attorneys (applicant)

- 2 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2009/324672

HODGSON JA

Monday 9 AUGUST 2010 Warwick S GRAVE v BLAZEVIC HOLDINGS PTY LTD t/as Kross Building Judgment 1 HIS HONOUR: I have before me a notice of motion seeking a variation of orders made by Young JA on 12 July 2010 pursuant to rule 51.58 of the Uniform Civil Procedure Rules. 2 Mr Hand, who appears for the applicant, seeks an adjournment by reason of the illness of the applicant. He also says that he wishes to bring an application to review Justice Young's decision under s 46 of the Supreme Court Act. In my view, this application should not be adjourned. There has been considerable delay in the matter already and this application, as expressed at present, could not, in my opinion, succeed. The dismissal of this application will not necessarily preclude the applicant bringing a further application that does seek a review under s 46 of the Supreme Court Act, which would go to a three-judge bench, and not just to another single judge. 3 I must say, having read the judgment of Young JA, it seems to me that it is a discretionary judgment, it is supported by very appropriate reasoning, and my assessment would be that the chance of having it successfully reviewed is very small indeed. 4 It is a matter in which it cannot be said that the appellant has no chance of success on appeal. The judgment of Young JA does indicate there is a possibility that the appellant could succeed on the basis that it was his company, and not the appellant himself, who contracted with the builder. However, there is no material before me to suggest that the builder is in fact owed less than the $48,000 that Young JA required to be paid as a condition of the stay. Nothing has been suggested to me as to why it would be unjust that the builder be paid that amount by the appellant, rather than his company, if it did so happen that that amount was irrecoverable from the builder. 5 For those reasons, it seems to me that the appropriate course to take today is to dismiss the notice of motion with costs, but to reinstate the stay imposed by Young JA subject to the condition that the $48,000 be paid on or before 23 August 2010. For those reasons, I make the following orders: 1. The notice of motion filed 26 July 2010 is dismissed with costs. 2. The stay ordered by Young JA on 12 July 2010 is reinstated conditionally on the sum of $48,000 being paid to the respondent on or before 23 August 2010. If that money is not paid by that date, the stay is lifted and the judgment can be enforced. oOo