Taheri v Vitek [2013] NSWCA 438

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Taheri v Vitek [2013] NSWCA 438 Hearing dates: 9/12/2013 and 11/12/2013 Decision date: 11 December 2013 Before: Leeming JA Decision: (1) I note that the existing undertaking in paragraph 1 of the short minutes of order dated 19 June 2013 continues, but is subject to the following orders and undertakings. (2) The applicant undertakes to the Court that she will prosecute with due despatch proceedings 2013/200165 and 2013/364156 and will to that end seek an order that the proceeding be expedited. (3) The applicant undertakes to the Court that she will not dispose of, alienate, charge or encumber her assets until the determination of these appeals other than to meet: (a) her ordinary business expenses (including tax liabilities); (b) her ordinary living costs and expenses; and (c) her legal costs of and incidental to proceedings 2013/200165, proceedings 2013/364156, proceedings 2010/328982 and proceedings 2005/258339. (4) The applicant charges (subject to existing encumbrances) the property contained in folio identifier 2/1110862 (being the land known as 81 xxxxxx Seaforth) with her liability to the respondents pursuant to the orders made by Bergin CJ in Equity and Rein J the subject of the appeals. (5) The applicant undertakes to the Court to take reasonable steps to place on the market for sale the properties contained in folio identifiers 259/SP65785 and 323/SP65785 (being the properties known, respectively, as xxxxxx George St, Sydney and xxxxxx George St, Sydney) by 1 March 2014 and will pay into Court the net proceeds of those sales at settlement. (6) Order that the stay ordered by Rein J 29 November 2013, extended by me on 9 December 2013, be further extended until further order. (7) Make no order as to costs on the basis that the costs of this application will be costs in the appeal. (8) Liberty to both parties to apply to me by email to my associate on 48 hours' notice. (9) Direct the applicant to file and serve her submissions and a red book by 31 January 2014. (10) Order that these proceedings be heard at the same time as proceedings 2013/200165. (11) Order that the hearing of these appeals be expedited. (12) Stand over both appeals to the Registrar's list on 18 December 2013. [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: PRACTICE AND PROCEDURE - stay pending appeal - whether appeal bound to fail - balance of convenience - where limited information about appellant's liabilities - offer to charge appellant's home to secure judgment debts - offer to attempt to sell specified real property and pay proceeds into Court - undertaking not to dissipate assets and prosecute appeal expeditiously - stay granted on terms. Legislation Cited: Conveyancing Act 1919, s 163B Evidence Act 1995, s 144 Supreme Court Act 1970 Cases Cited: Alexander v Cambridge Credit Corporation Ltd (Receivers appointed) (1985) 2 NSWLR 685 Boutros v Nationwide Capital Pty Ltd [2013] NSWCA 246 Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; 55 NSWLR 737 Mio Amico Pty Ltd v ANZ Banking Group [2013] NSWCA 353 Portaccomm Building Systems Pty Ltd v Southern Sheet & Coil Pty Ltd [2013] NSWCA 123 Vaughan v Dawson [2008] NSWCA 169 Vitek v Taheri [2013] NSWSC 589 Category: Interlocutory applications Parties: Veeda Taheri (appellant/applicant on the motion) Peter Vitek (first respondent) Shoshana Vitek (second respondent) Representation: Counsel: M Condon SC (appellant/applicant) B Zipser (respondents) Solicitors: McLaughlin & Riordan (appellant/applicant) Farrar Lawyers (respondents) File Number(s): 2013/364156 Decision under appeal Jurisdiction: 9111 Citation: [2013] NSWSC 1764 Date of Decision: 2013-11-22 00:00:00 Before: Rein J File Number(s): 2005/258339