Mitzev v. Foxman

HODGSON JA: I am dealing with an amended notice of motion which was filed in court today. It bears date 31 May 2007. It seeks an extension of time for the filing of a notice of appeal without appointment, and it seeks a stay of some of the orders made by Justice Hamilton. The application for the extension of time is not opposed, and in my view the circumstances shown by the evidence justify the grant of the extension of time.

On the question of the stay, the material suggests that there are arguable grounds of appeal. However, that is not usually regarded as sufficient to stay orders for payment of money, and there is in fact no evidence that the money, if paid over, would be irrecoverable. The amount immediately involved is the proceeds of sale of a property which, after payment out of a mortgage and expenses of sale, may be of the order of $60,000 to $100,000. The total amount payable under the primary judge’s orders, I am told, is of the order of $700,000.

The respondent is prepared to undertake to the court not to seek to further execute the judgment beyond receiving the balance of proceeds of sale. In the circumstances, I think that is adequate protection for the appellant, and I am not prepared to make an order as regards the balance of the proceeds of sale.

On the question of costs, I think, on the matter that was actually contested today, the respondent was substantially successful, and I will order that the appellant pay the respondent’s costs of the motion, but I will not make any order that would enable those costs to be assessed prior to the hearing of the appeal.

So the orders I make are: 1. I make order (3) in the amended notice of motion. I note that the respondent undertakes to the court not to further enforce the orders made by Justice Hamilton beyond receiving the nett proceeds of sale of the Jindabyne property. 2. I otherwise dismiss the notice of motion and I order the appellant to pay the respondent’s costs of the notice of motion.