Vo v Tran (No 3)

[2016] NSWSC 1199

Supreme Court

New South Wales

Medium Neutral Citation:

Vo v Tran (No 3) [2016] NSWSC 1199

Hearing dates:

18 August 2016

Date of orders:

30 August 2016

Decision date:

30 August 2016

Jurisdiction:

Common Law

Before:

Hall J

Decision:

(1)   That the defendants file and serve a Notice of Appeal within 28 days of the date of delivery of these reasons for judgment.

 

(2)   That the defendant pursue the appeal with due diligence.

 (3)   I reserve any question of costs in relation to the stay application.

Catchwords:

PRACTICE AND PROCEDURE – judgments and orders - stay of judgment conditional upon the filing of an appeal within 28 days and pursuing the appeal with due diligence - where risk that plaintiff will be unable to repay the money without difficulty or delay if appeal were to succeed

Cases Cited:

Woolworths Ltd v Strong (No 2) [2011] NSWCA 72

Category:

Procedural and other rulings

Parties:

Thi Ngoc Hien Vo (Plaintiff)
Hung Vien Tran (First Defendant)
Thuy My Le (Second Defendant)

Representation:

Counsel:
DE Baran (Plaintiff)
N Polin SC (Defendants)

  Solicitors:
Shine Lawyers (Plaintiff)
Curwoods Lawyers (Defendants)

File Number(s):

2014/242686

Judgment – ON STAY APPLICATION

1. The defendants seeks a stay of the judgment conditional upon it filing a Notice of Appeal within 28 days and upon the basis that they will pursue any appeal with due diligence.

2. In support of the defendants’ application reliance was placed upon the observations of Campbell JA in Woolworths Ltd v Strong (No 2) [2011] NSWCA 72 at [66]-[73].

3. The defendants’ submission was that, as Campbell JA stated in Woolworths Ltd v Strong, the usual practice of this Court is to stay judgment “pending appeal where there is a risk that the plaintiff will be unable to repay the money without difficulty or delay if the appeal were to succeed”. It was submitted in this case it was clear that the plaintiff is impecunious. It was said that she is unemployed, and remains in Australia on a bridging visa. It was contended that there is no doubt that “there is a risk that the plaintiff will be unable to repay the money without difficulty or delay”.

4. Accordingly it was submitted that the Court should grant a stay in these proceedings.

5. In reply, Mr Baran, counsel for the plaintiff, frankly conceded that the plaintiff is “impecunious” and that she could not, in the event that the appeal was allowed, repay the monies from her own resources: T 9:5-10.

6. Mr Baran also frankly conceded that the trend today is more to order a stay, but nonetheless the Court could at least consider “a partial payout”: T 9.

7. He submitted that if the stay was to be granted then the defendants should undertake to prosecute the appeal with expedition.

8. Having considered the competing submissions, I have concluded that in all the circumstances, it is appropriate to grant the stay as sought. Accordingly, judgment is stayed on the following bases:

1. That the defendants file and serve a Notice of Appeal within 28 days of the date of delivery of these reasons for judgment.

2. That the defendant pursue the appeal with due diligence.

9. I reserve any question of costs in relation to the stay application.

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