Dai v Zhu [2013] NSWCA 134

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Dai v Zhu [2013] NSWCA 134 Hearing dates: 20 May 2013 Decision date: 24 May 2013 Before: Basten JA Decision: (1) Execution by way of proceedings under the Bankruptcy Act 1966 (Cth) of the orders of Rothman J identified in the Schedule set out below be stayed pending determination of the proceedings in this Court seeking leave to appeal from those orders and, if leave be granted, the appeal, subject to the following conditions: (a) that the applicants pay into court the amount of $500,000 within 28 days, subject to satisfaction of the respondents' obligation in paragraph (b); (b) the respondents file with the Registrar an undertaking to the Court, signed by their solicitor, to consent to any application made by the applicants in the Federal Circuit Court or the Federal Court seeking an extension of time within which to comply with any bankruptcy notice issued by the respondents to a date 28 days after the determination of the proceedings in this Court; (c) in the event that an undertaking in compliance with paragraph (b) is not proffered to the Registrar in a form acceptable to him within 14 days of the date of this judgment, the condition imposed on the applicants by paragraph (a) will lapse; (d) if, at any time after moneys have been paid into court in pursuance of paragraph (a), the Registrar is satisfied that the respondents have failed to comply with their undertaking, the condition provided in paragraph (a) will lapse and the Registrar may arrange for the release of the moneys to the applicants, and (e) the applicants take all necessary steps to ensure the expeditious determination of the proceedings in this Court. (2) The application for leave to appeal and the appeal should be listed for concurrent hearings. (3) The costs of the motion will be costs in the proceedings. [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: PROCEDURE - civil - judgments and orders - whether stay should be granted pending determination of leave application and any subsequent appeal - where respondents have commenced bankruptcy proceedings to execute judgment -risk that applicants will lose power to proceed with proposed appeal - where amount in issue significant - where challenged judgment included findings regarding breach of discovery obligations and dissipation of assets