[2026] NSWSC 471

Brown v Etna Developments Pty Limited (No 2)

At [16]

Catchwords

INTERLOCUTORY – Fourth defendant seeks variation to garnishee orders to fund High Court special leave application – Plaintiffs oppose application and seek to compel compliance with garnishee orders

Legislation cited

Civil Liability Act 2002 (NSW)

Judgment

[1]
Before the Court are two notices of motion concerning a sum of money of about $435,000, that is currently held in the trust account of a law firm Stewart Law. On 4 March 2026, the plaintiffs obtained an order from the NSW Court of Appeal for judgment in the sum of over $2 million against the sixth defendant, Mr Alex Kalantzis. The judgment was to provide damages for reinstatement of land found to have been damaged by the defendants, including Mr Kalantzis.
[2]
On 10 April 2026, a garnishee order was issued to Stewart Law concerning the money held in trust. That order required transfer of money to the first plaintiff within 14 days, namely by 24 April 2026. There has not been compliance with that order.
[3]
The principal of, Mr Andrew Stewart, has not appeared today and has not provided to the Court an explanation for the failure to comply with the Court's order. The plaintiffs seek an order compelling compliance with the garnishee order. The plaintiffs’ solicitor has given evidence by affidavit that Mr Stewart informed him that he will comply with an order made by me to do so.
[4]
Mr Kalantzis, in effect, resists such an order, for reasons identified in his submissions and an affidavit. He seeks release of the funds held in the trust account to fund legal costs of a High Court application for special leave to appeal.
[5]
In fact, the application was filed with the High Court on 13 April 2026. It was brought out of time, with the explanation in an affidavit variously that:
1. (1)
  He received the orders and judgment some time after they were given;
2. (2)
  He had administrative problems with his computer and printer;
3. (3)
  He found the High Court lodgement system was difficult to navigate;
4. (4)
  There were problems with his witnessing solicitor's computer system causing further delay and his internet connection was poor and unreliable.
[6]
Mr Kalantzis also referred to his current medical condition. He is receiving workers compensation because of an injury, which has caused ongoing problems for him.
[7]
Mr Kalantzis’ special leave application complains about four matters:
1. (1)
  An evidentiary threshold for trespass and raises an issue of whether lay observations are sufficient to prove physical encroachment when there is no documentary evidence;
2. (2)
  whether a Court may infer a material contribution under s 5D(1)(a) of the Civil Liability Act 2002 (NSW);
3. (3)
  whether full cost of rectification is an appropriate measure of damage to residential land; and
4. (4)
  whether a trespass arising from the failure to take reasonable care remains apportionable under Part 4 of the Civil Liability Act when the defendant's pleading expressly invites proportionate liability.
[8]
In oral submissions concerning this application, Mr Kalantzis indicated to me that he considered these matters were of public importance. He considers that the Court of Appeal's decision is wrong and that there were a number of lies told during the proceedings.
[9]
Mr Kalantzis has informed me that he seeks access to the money in the trust account to pay for his legal costs. There is no evidence before me what costs they are and why the money is required now, in circumstances where the special leave application has in fact been filed, and special leave applications are generally determined on the papers. I have not been informed that the High Court has determined an oral hearing will be necessary.
[10]
Mr Kalantzis also points to the fact that there is no freezing order in place in relation to the trust funds. However, during the running of the litigation, on 18 August 2025 Mr Kalantzis gave an undertaking to the Court that:
[11]
That undertaking was modified on 17 November 2025 by Free JA to provide that the sale proceeds would be kept in a trust account of Stewart Law, but otherwise on the same terms.
[12]
The plaintiffs did consent to some of the sale proceeds in that trust account being disbursed to pay legal expenses relating to the Court of Appeal hearing.
[13]
The plaintiffs do not take issue with the undertaking’s requirement to give a notice in writing of the particular form concerning the disposal; they take Mr Kalantzis's application and evidence as a notice of proposed disposal, disbursement or dealing. The plaintiffs do not consent. The plaintiffs rely on the fact that there Mr Kalantzis has not brought an application to set aside the garnishee order. I note that there is no application to stay the Court of Appeal's judgment.
[14]
I raised with Mr Kalantzis that I was unaware of any evidence, that if the garnishee order was enforced, and the money was paid to the plaintiffs that there was a real risk that that money could not be recouped from the plaintiffs, should Mr Kalantzis's High Court special leave application and appeal be successful.
[15]
In circumstances where Mr Kalantzis effectively accepts that he does not have means beyond the money held in trust, I do not accept the submission that the plaintiffs would suffer no prejudice if the garnishee order was not enforced or there was some other delay.
[16]
I do not accept that enforcing the garnishee order would render the liberty to apply in the 18 August 2025 orders meaningless, because Mr Kalantzis's motion is being determined on the basis of all of the material that he has presented to the Court. I do not accept that the obvious consequence of enforcing the garnishee order is that Mr Kalantzis would be prevented from prosecuting his High Court appeal in circumstances where the special leave application has already been lodged and is likely to be determined on the papers. I also do not accept it would cause irreparable harm to the administration of justice in circumstances where the starting point is that a successful party is entitled to the fruits of a judgment and it has not been demonstrated that the usual requirements for a stay are made out.
[17]
There is no automatic right of a stay pending an appeal. Any discretion, including delaying enforcement of the garnishee order, requires a weighing of consideration, such as balance of convenience and the competing rights of the parties.
[18]
As I indicated, there is no evidence that should Mr Kalantzis be successful in the High Court that he will not be able to recover moneys from the plaintiffs. However, it appears apparent that if the garnishee order is not enforced, then the money held in the trust account or a large component of the money in the trust account will become forever unavailable to the plaintiffs.
[19]
It is unnecessary for the purpose of these applications to form a view as to the strength of the special leave application.
[20]
In the circumstances, I make the following orders:
1. (1)
  I order that Stewart Law Pty Ltd forthwith transfer to the first plaintiff all debts that are due or accruing from Stewart Law Pty Ltd to the sixth defendant to the extent of $2,172,232 together with interest in the sum of $178,304 to answer a judgment in these proceedings.
2. (2)
  I order Mr Andrew Stewart to provide to the Court an affidavit explaining the non-compliance with the garnishee order issued to his firm on 10 April 2026 by 6 May 2026, such affidavit to be emailed to the chambers of Peden J.
3. (3)
  I dismiss Mr Kalantzis's notice of motion filed on 21 April 2026.
4. (4)
  I will stand over the question of costs of the plaintiff's notice of motion filed on 28 April 2026 to 7 May at 9 am.
5. (5)
  I direct Mr Stewart to appear on that day.
6. (6)
  I direct the plaintiffs to notify Stewart Law of these orders.