Dawn Jade Limited v Himanshu Girdhar Dua [2014] NSWSC 1085

Supreme Court New South Wales

Medium Neutral Citation: Dawn Jade Limited v Himanshu Girdhar Dua [2014] NSWSC 1085 Hearing dates: 7 August 2014 Decision date: 12 August 2014 Jurisdiction: Common Law Before: Adamson J Decision: (1) On the basis of the undertaking given by Mr Dua to the Court through his counsel, Mr Spencer, the terms of which are noted below, order, pursuant to section 8(1) of the Foreign Judgments Act 1991 (Cth), that enforcement of the judgment registered in these proceedings on 31 January 2013 be stayed pending the final determination of Civil Appeal No. 4 of 2014 in the High Court of the Hong Kong Special Administrative Region Court of Appeal or until further order of this Court on the following conditions: (a) Mr Dua file and serve within seven days of the date hereof an affidavit verifying his financial position, including all assets held by him as at 12 August 2014, whether beneficially or otherwise and the location of such assets; and (b) Mr Dua pursue the appeal referred to in (1) above in an expeditious manner. (2) If Mr Dua fails to comply with either of the conditions referred to in (1) above, or if he breaches his undertaking, the plaintiffs have liberty to restore the matter before me for consideration whether an order ought be made varying the condition set out in (1) above to require Mr Dua to pay the judgment monies into Court as a condition of any continuing stay. (3) Unless an application for a different order is made in writing to my Associate within seven days, order the defendant to pay the plaintiffs' costs of the notice of motion. Catchwords: PROCEDURE - notice of motion - order seeking stay of enforcement of judgment - stay of enforcement of judgment granted - balance of convenience favours the defendant given the imminence of an appeal to the High Court of the Hong Kong Special Administrative Region Court of Appeal and ensuring that the defendant not lose the opportunity to have the appeal determined fully on its merits - plaintiffs not entitled to be put in better position as a result of stay Legislation Cited: Foreign Judgments Act 1991 (Cth), s 8 Cases Cited: Alexander v Cambridge Credit Corporation Ltd (Receiver Appointed) (1985) 2 NSWLR 685 Henderson v Amadio [1996] 136 ALR 593 House v The King [1936] HCA 40; 55 CLR 499 Kalifair Pty Limited v Digi-Tech (Australia) Limited [2002] NSWCA 383; 55 NSWLR 737 Mushroom Composters Pty Limited v IS & DE Robertson Pty Limited [2014] NSWCA 231 Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; 223 CLR 331 Reinehr Industrial Lease and Finance v Jordan (Court of Appeal (NSW), Street ACJ, 4 June 1974, unrep) Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR (NSW) 239 Category: Procedural and other rulings Parties: Dawn Jade Limited (First Plaintiff) Gao Fu Holdings Limited (Second Plaintiff) Himanshu Girdhar Dua (Defendant) Representation: Counsel: G P McNally SC and S Ipp (Plaintiffs) A Spencer (Defendant) Solicitors: Holman Fenwick Willan (Plaintiffs) Baker & McKenzie (Defendant) File Number(s): 2013/27877 Publication restriction: Nil