Land and Environment Court New South Wales Medium Neutral Citation: Shields v Monhem (No 3) [2014] NSWLEC 124 Hearing dates: 19 August 2014 Decision date: 19 August 2014 Jurisdiction: Class 2 Before: Sheahan J Decision: (1) The execution of Orders (5) to (10), made on 18 July 2014, and these proceedings 2014/20160, generally, are stayed, pending the decision of the Court of Appeal on the appeal sought to be brought by the respondent Monhems. (2) I note and accept the undertaking given to the Court, by the applicant Shields in paragraph 9 of his affidavit of 15 August 2014. (3) The costs of the respondents' motion for a stay will be the parties' "costs in the cause". Catchwords: PRACTICE AND PROCEDURE: Application for a stay of orders, pending an appeal against them - principles to apply - is appeal arguable or hopeless? - balance of convenience - costs. Legislation Cited: Trees (Disputes Between Neighbours) Act 2006 Uniform Civil Procedure Rules 2005 Cases Cited: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 Chen v Lym International [2009] NSWCA 121 Shields v Monhem (No 2) [2014] NSWLEC 99 Shields v Monhim [2014] NSWLEC 1097 Category: Principal judgment Parties: Ranald Mark Shields (Applicant) Mansour Monhem (1st Respondent) Houda Monhem (2nd Respondent) Representation: Mr R White, barrister (Applicant) Mr H Altan, barrister (Respondents) Houston Dearn O'Connor (Applicant) Cordato Partners Lawyers (Respondents) File Number(s): 20160 of 2014 ex-tempore Judgment A Stay is Sought 1I made orders on 18 July, in Shields v Monhem (No 2) [2014] NSWLEC 99, extending the times for compliance with orders made by Commissioner Fakes, in Shields v Monhim [2014] NSWLEC 1097, but dismissing a Notice of Motion ("NOM") by the respondent Monhems, seeking to set aside her judgment and orders, pursuant to Uniform Civil Procedure Rules 2005 r 36.16(1). 2The Monhems have sought leave to appeal to the Court of Appeal against my decision, on the grounds that I applied to them a more stringent test on that NOM than was legally correct. 3They are certainly entitled to contest my decision, and I do not consider that that challenge is any less than "arguable", let alone "hopeless", as their opponents submit. 4What is before me today is an application for my orders, and, generally, the proceedings in this Court (including a pending costs application), to be stayed, pending a final decision by the Court of Appeal. Principles 5It appears to be common ground that the appropriate principles for me to apply are as set out in Alexander v Cambridge Credit Corporation Ltd, a 1985 Court of Appeal case (1985) 2 NSWLR 685, especially at 694 - 695, and in Chen v Lym International [2009] NSWCA 121, per Beazley JA at [12] - [15], [40], [42] and [55]. 6In the other case mentioned in argument, Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172, there are relevant considerations, especially at [27] - [28] (per the plurality) and [48] (per Kirby J), on the merits of the Monhems' "reopening application". Discussion 7Given that I accept that the Monhems' challenge to my decision is at least "arguable", and in the face of the Court's continuing concern regarding environmental harm likely to be caused by any delay in finalising these proceedings, it is necessary for me to consider the appropriate outcome on the stay application on the "balance of convenience" - that is, as between ongoing damage on one side of the boundary fence, and the claimed greater impecuniosity of the parties on the other side of it. 8Mr Shields is concerned about the on-going damage to his property, and is prepared to undertake to the Court that he will repay the Monhems, in the event of the ultimate dismissal of his substantive Class 2 proceedings, the amount of any expenditure they incur in complying with the orders currently on foot in the matter, as varied by my amended timetable. 9The parties could not agree on an outcome to the stay application around that undertaking, but the Monhems, through their counsel, expressed a preparedness to comply with Orders 1 - 4 of 18 July (i.e. those orders concerning the removal of the tree), if the other extant orders (i.e. those concerning remediation works) are stayed. Conclusion and Orders 10The key authorities to which I have referred envisage the imposition of appropriate conditions on an order for a stay, and I make the following orders on the Monhems' present NOM for such a stay: (1)The execution of Orders (5) to (10), made on 18 July 2014, and these proceedings 2014/20160, generally, are stayed, pending the decision of the Court of Appeal on the appeal sought to be brought by the respondent Monhems. (2)I note and accept the undertaking given to the Court, by the applicant Shields in paragraph 9 of his affidavit of 15 August 2014. (3)The costs of the respondents' motion for a stay will be the parties' "costs in the cause". 11I trust that all parties will now seek to have the proceedings in the Court of Appeal dealt with as expeditiously as possible. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 August 2014