Australian Executor Trustees Ltd v Pachkovski [2011] NSWCA 23

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Australian Executor Trustees Ltd v Pachkovski [2011] NSWCA 23 Hearing dates: 31 January 2011 Decision date: 23 February 2011 Before: McColl JA Decision: As to the motion filed on 20 January 2011: 1. Lift the stay of the writ of possession granted by Young JA on 29 November 2010. 2. Set aside the subpoena filed on 6 January 2011. 3. Each party to bear its and their costs of the motion filed on 20 January 2011. As to the motion filed on 24 November 2010: 4. Dismiss the motion filed on 24 November 2010. 5. Applicants to pay the costs of the motion. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: APPEAL - application for summary dismissal - Uniform Civil Procedure Rules 2005 13.4 - leave to appeal - powers of a single judge of appeal - s 46 Supreme Court Act 2005 (NSW)

PROCEDURE - application to set aside subpoena

PROCEDURE - stay of writ of possession pending appeal - prejudice - no dispute as to liability for principal sum owing - stay not appropriate Legislation Cited: Civil Procedure Act 2005 (NSW) Federal Court Act 1976 (Cth) Supreme Court Act 1970 (NSW) Uniform Civil Procedure Rules 2005 Cases Cited: Australian Executor Trustees Ltd v Alexandre Pachkovski & Ors [2010] NSWSC 1089 Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 Cox v Journeaux [No 2] [1935] HCA 48; (1935) 52 CLR 713 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Macatangay v State of New South Wales (No 2) [2009] NSWCA 272 Spencer v Commonwealth [2010] HCA 28; (2010) 84 ALJR 612 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in liq) [1999] HCA 3; (1999) 73 ALJR 306 Wright v Ryan [2005] NSWCA 368 Category: Principal judgment Parties: Australian Executor Trustees Ltd (Applicant) Alexandre Pachkovski (First Respondent) Violetta Primanzon (Second Respondent) Grigoriy Primanzon (Third Respondent) Representation: Counsel: A Casselden (Applicant) Respondents in person Solicitors: Gadens Lawyers (Applicant) File Number(s): 2009/295053 Decision under appeal Jurisdiction: 9111 Citation: Australian Executor Trustees Ltd v Alexandre Pachkovski [2010] NSWSC 1089 Date of Decision: 2010-09-24 00:00:00 Before: Hidden J