DeMarco v Macey

1. [1]

   By Summons filed on 27 October 2021, the plaintiff, Godfrey DeMarco appeals from a decision that the NCAT Appeal Panel made against him in favour of the defendants on 28 September 2021: DeMarco v Macey (No 2) [2021] NSWCATAP 354. The plaintiff is a builder and the dispute concerned a project he was involved in for the defendants.

2. [2]

   On 18 March 2022 as duty judge I heard an urgent notice of motion seeking a stay and a restraint from enforcing judgment. On that day I made orders granting a short stay and these are my reasons for making those orders.

Background

1. [3]

   That appeal is listed to be heard in this Court on 7 April 2022 with a 1-day estimate. The Summons is detailed and clear as to the grounds of appeal and written submissions have been filed by both sides. Counsel have informed me, and I accept, that the appeal is ready to run on that day.

2. [4]

   On 13 December 2021, the plaintiff filed a notice of motion seeking a stay of the Tribunal’s orders until the appeal is determined, and an order under the Civil Procedure Act 2005 (NSW) restraining the defendants from enforcing the judgment entered by the defendants in the District Court on 17 November 2021 that resulted from the Appeal Panel’s decision against him.

3. [5]

   In February 2022, at a directions hearing before the Registrar, that motion was stood over for hearing concurrently with the appeal, no doubt as a matter of pragmatics and costs saving.

4. [6]

   As events transpired, the plaintiff was served with a letter from the Department of Fair Trading on 17 March 2022 to the effect that unless he provided the Department with either an order staying the Appeal Panel decision, a court instalment order, a private alternative arrangement or full compliance by 21 March 2022, the Department would suspend his builders license.

5. [7]

   The plaintiff also became aware on that day that the defendants had taken out a writ for the levy of property in the District Court.

6. [8]

   Urgent orders were sought to protect the position in the form of the notice of motion that came before me as duty judge on 18 March 2022.

7. [9]

   Counsel provided helpful written submissions and a chronology. Focused, sensible and helpful oral submissions were provided by both Counsel, Mr Lambert for the plaintiff, and Mr Mobellan for the defendant.

Relevant principles

1. [10]

   The relevant principles were succinctly set out in Mr Lambert’s written submissions at paragraphs 19 – 24 and 26 – 28, as follows:

Argument

1. [11]

   Mr Lambert argued that the plaintiff’s written submissions filed in support of the appeal and his response submissions, and in particular the issue of apprehended bias by the original tribunal member, (and so procedural unfairness) underpinned real prospects of success on the pending appeal.

2. [12]

   In support of the stay he argued that if a stay was not granted, there would be irreparable damage, because the plaintiff’s builders licence would be lost and he would be deprived of his only source of income. The evidence indicated that the plaintiff is in the middle of a building project in Paddington. The project would have to immediately stop. His income would cease, adding to difficulties in funding the appeal proceedings and maintaining income to ensure an available sum to pay the judgment debt if his appeal fails.

3. [13]

   Mr Lambert argued these concerns outweigh any potential prejudice to the defendants. I agree.

4. [14]

   There was a suggestion in submissions that the defendants were in financial need, however, there was no evidence of specific financial hardship. In any event, the overarching principle is that a successful party is entitled to the fruits of their victory. Clearly there has been some delay awaiting the hearing of the appeal to this Court. Evidence was tendered that both the plaintiff and the defendants own property, although no detail was provided as to encumbrances on any of those properties or their gross or net value. It was submitted, and I agree, that the question of whether either side could pay the judgment money and/or costs is probably neutral.

5. [15]

   Mr Lambert sought a stay until the appeal is finally determined. I raised with counsel that I thought that was too long a period and probably not necessary to protect the current position, given the hearing date is under three weeks away.

6. [16]

   Once I articulated that I was contemplating a stay to the day after the hearing of the appeal, Mr Mobellan candidly and sensibly indicated he could raise little opposition to that course.

7. [17]

   Mr Mobellan raised the possibility of a stay on terms that the plaintiff, in an indication of good faith, pay into the Court the amount assessed by the Appeal Panel as due to the defendants. I considered that step probably unnecessary and anyway one that did not give the defendants the fruits of their victory. In the absence of a suggestion that the plaintiff had no prospect of satisfying the verdict, this was not a condition I thought was useful or necessary to impose at this stage.

Decision

1. [18]

   Having read the Summons and the submissions on the appeal, I take the view that there is at least an arguable basis and some rational prospects of success for the appeal.

2. [19]

   Once the judge hearing the appeal has heard the evidence and argument on 7 April 2022, he or she will have a much better idea of the merits of the appeal and how the matter is likely to be decided, and so the merits of any further stay application and any conditions that should be imposed.

3. [20]

   The balance of convenience favours the grant of the short stay that I propose. True it is that the defendants will be kept from the fruits of their victory a little longer, but the effect upon the plaintiff if the stay is not granted is that he will not be able to work, and thus will earn no income. No doubt, damage to projects he is engaged in and damage to his reputation would quickly follow. These matters are irreparable.

Orders

1. [21]

   I make the following orders:

   1. (1)

      The Court grants leave for the notice of motion filed on 18 March 2022 to be returnable instanter.

   2. (2)

      The time for service of this notice of motion is abridged to 18 March 2022.

   3. (3)

      On account of the plaintiff giving the usual undertaking as to damages:

   4. (4)

      Costs of this motion are costs in the cause.

   5. (5)

      These orders are to be entered forthwith.