Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 Hearing dates: 14 July 2014 Decision date: 17 July 2014 Before: Gleeson JA Decision: (1) On condition that the applicant provide security by way of bank guarantee of $400,000 for the judgment debt and interest, such bank guarantee to be in favour of the Principal Registrar of the Court and otherwise in terms as approved by the Principal Registrar - stay the enforcement of the orders of McDougall J of 12 May 2014 pending the determination of the appeal by this Court or until earlier further order. (2) The stay referred to in Order 1 is effective immediately, but is to lapse if the condition has not been fulfilled at the expiry of 21 days from today. (3) The costs of the notice of motion filed 23 June 2014 be costs in the appeal. [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 - Application for a stay of proceedings pending appeal - Whether there are arguable grounds of appeal - Whether there is a risk that the judgment will not be repaid if not stayed - Where there is a risk that the appellant's financial position might deteriorate pending appeal - Balance of convenience or Balance of hardship between the parties - Terms on which stay should be granted - Amount of security required Cases Cited: Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 130 Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; 55 NSWLR 737 Mushroom Composters v IS & DE Robertson Family Trust [2014] NSWSC 164 Mushroom Composters v Robertson (No 2) [2014] NSWSC 552 TCN Channel 9 Pty Limited v Antoniadis (No 2) (1999) 48 NSWLR 381 Category: Interlocutory applications Parties: Mushroom Composters Pty Ltd (Applicant) IS & DE Roberson Pty Ltd (Respondent) Representation: Counsel: G A Sirtes and S Duggan (Applicant) B F Katekar (Respondent) Solicitors: CDG Law (Applicant) Henry Davis York (Respondent) File Number(s): 2014/158572 Decision under appeal Jurisdiction: 9111 Citation: Mushroom Composters v Robertson (No 2) [2014] NSWSC 552 Date of Decision: 2014-05-12 00:00:00 Before: McDougall J File Number(s): 2011/20925