Tannous v Tang

Texts Cited: Nil.

Category: Procedural rulings

Parties: Charbel Tannous (Plaintiff)
Manyun Tang (First Defendant)
Ya Jun Tang (Second Defendant)

Representation: Counsel:
A Ivantsoff (Plaintiff)
Solicitors:
Finn Roache Lawyers (Plaintiff)
Jane Button & Associates (First and Second Defendants)

File Number(s): 2023/00083272

Publication restriction: Nil.

JUDGMENT – EX TEMPORE

1. Before the Court is a Notice of Motion brought by the defendants, Manyun Tang and Ya Jun Tang, seeking a stay and related orders concerning orders made by her Honour, Cole DCJ, on 17 December 2025.

2. The underlying dispute relates to water said to be escaping from the defendants’ land at [redacted], Yagoona, New South Wales, over the plaintiff’s land at [redacted], Yagoona. Her Honour in her judgment preferred the expert evidence tendered on behalf of the plaintiff and entered judgment for the plaintiff on the plaintiff’s claim with a mandatory order for work to be conducted by the defendants to remedy a nuisance and for the payment of damages of a little short of $100,000.

3. The practice of the Court is that a stay application is usually made either to the trial judge or, if that is not possible, to a single judge of the Court of Appeal. For some unclear reason, the application came before me as list judge. The matter was adjourned on 20 February 2026 in order for further evidence to be provided which was provided by affidavits on behalf of both parties.

4. The defendants on the application read the affidavits of Jane Elizabeth Button of 4 February 2026 and Mr Tang of 4 March 2026 and Mr Tannous read his affidavit of 9 March 2026. In the period since the matter was last before the Court, the defendants, who had up to that stage merely filed a document indicating that they intended to appeal, have filed a Summons seeking leave to appeal on 6 March 2026, and with that, have filed an outline summary of argument with a proposed Notice of Appeal providing some detail.

5. The defendants submit, in summary:

(a) That the documents before the Court and in the proposed Notice of Appeal put forward arguable grounds of appeal; (b) That the mandatory order made by Cole DCJ on 17 December 2025 requires work to be done and if they are successful in an appeal that it would be wasted or inappropriate work involving trouble and expense; (c) That the evidence from Mr Tang shows that the money taken out of his account so far has interrupted his business affairs. I am told from the bar table, though there is no evidence to that effect, that Mr Tang does not have cash to enable the balance of the moneys in the ordered sum in the judgment to be paid into Court, and (d) It is submitted overall that the balance of convenience in the light of arguable grounds of appeal favours orders staying the matter as sought in the Notice of Motion.

6. Mr Ivantsoff of counsel, who appears for the plaintiff, makes a number of submissions:

(a) While not accepting that the grounds of appeal are likely to succeed, he accepts that they are put in the usual form and are detailed; (b) However, he does not accept the criticism of the work order, particularly in the light of the orders made by the Council for work to be performed in 2023 which are reflected in exhibit 1; (c) The evidence from Mr Tannous shows that if the moneys were paid by the defendants in accordance with the judgment, that Mr Tannous would have the capacity to repay such moneys through a combination of either:

(i) Moneys held in offset accounts, or (ii) Loan moneys offered by his brother, or (iii) Through equity held in his property.

As to the latter, although there is no valuation evidence before the Court, in the light of the amount of the mortgage indicated, it would be surprising if the value of the property did not well exceed the amount in issue;

(d) That the evidence of Mr Tannous supports the fact that although he has taken steps of self help to install a drain, there has been water passing onto his property and he is very concerned about future flooding damage to the property. It is submitted that the balance of convenience is very much not in favour of granting the orders proposed by the defendants.

7. The principles to be applied by the Court in considering a stay are traditionally stated as starting with the Court of Appeal decision in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685. That judgment has been referred to with approval in a number of cases, usually by single judges of the Court of Appeal. I refer in particular to:

(a) Trentelman v The Owners – Strata Plan No 76700 [2021] NSWCA 62 per Leeming JA at [18]–[20]; (b) Zhu v Wang [2021] NSWCA 149 per Payne JA at [33]; (c) Michael Hill Jeweller (Australia) v Gispac Pty Ltd [2024] NSWCA 128 per Payne JA at [5] and following; and (d) Rahman v Rahman [2025] NSWCA 126 per Adamson JA at [18].

8. In the last case mentioned, of Rahman, her Honour referred to the powers of the court to grant a stay pending an appeal in s 67 of the Civil Procedure Act 2005 (NSW). Her Honour approved the statement of principles by Payne JA in the Michael Hill case. There, his Honour said that the principles applicable were similar to those which govern the grant of interlocutory relief before trial. Adamson JA approved the statement that:

A party applying for a stay must show, first, that the appeal raises serious issues for determination by the appellate court; and secondly, that there is a real risk that the appellant will suffer prejudice or damage if the stay is not granted. If an appellant prevails on those two questions, then the Court is to consider the balance of convenience and the competing rights of the parties.

9. As has been emphasised in a number of cases, it is not necessary for the grant of a stay for the applicant to show special or exceptional circumstances. It is sufficient that the applicant demonstrates a reason or appropriate case to warrant the exercise of the discretion in their favour. Factors which will be relevant include whether the appeal will prove abortive if the appellant succeeds and the stay is not granted. It also was made clear by Leeming JA in the Trentelman case that a judge does not ordinarily go beyond the question as to whether the appeal is reasonably arguable.

10. Going back to the issues to be determined by the Court, in relation to the question whether the appeal raises serious issues for determination by the appellate court, I note that the defendants have filed a Summons for leave to appeal and have included detailed arguments in favour of the appeal and a detailed draft Notice of Appeal. The grounds referred to are not general ones but appear to have been prepared with careful consideration to the evidence. I accept that the grounds of appeal largely are based on the fact that Cole DCJ took a wrong view of the evidence. However, the documents seem to be carefully prepared, and on their face, would require careful examination of the expert evidence which was not before me. On their face, they appear to suggest arguable grounds of appeal.

11. In relation to the question about work to be performed pursuant to Cole DCJ’s order, it seems to me that that work, if the order is ultimately set aside, may result in a part of the appeal of the defendants being nugatory and render that part of the appeal abortive. I take into account that the Council has already made work orders, but there is no evidence that they have been enforced while the proceedings that were ultimately determined by Cole DCJ occurred. Having regard to the matters I have referred to, I am satisfied that the appeal raises serious and arguable issues for determination by the appellate court, and there is a real risk the appellant will suffer prejudice or damage if a stay is not granted.

12. In relation to the money ordered to be paid, I am not satisfied on the balance of the evidence that Mr Tannous could not, through various means, repay the money. However, I also take into account that Mr Tang runs a business. In my view, an order could be made dealing with that matter through an appropriate form of security. I think the real risk of prejudice is if the work order is made and ultimately it is found to be not required for some reason. I am therefore satisfied that on the face of it, the defendants have met the two competing requirements for a stay. The Court therefore has to consider the balance of convenience and the competing rights of the parties.

13. One starts with the proposition that a party with success in a case is prima facie entitled to the fruits of the success. That means in the current case, the payment of the money and the work to be performed. I take into account the various factors that have been put forward in submissions. On the one hand, I take into account the imposition on the defendants through the payment of money where cash is said not to be had but in the context of the property in question being an investment property, the fact that a work order has been made in the context of the history of the Council order, and their desire to avoid unnecessary work if they are successful in the appeal. There is also no indication that failing to receive the moneys by Mr Tannous would cause any severe prejudice to him, although of course, that is a matter that goes both ways if it existed. In relation to Mr Tannous’ position, I take into account the concern about further damage to his property and the desire for the matter to be clear one way or another.

14. Taking into account all of those matters, I am concerned that the appeal is brought on promptly and that there be some security for the amount said to be owing. I note that some amount has already been garnisheed and is being held in an account. It seems to me that one way of providing some protection in the balance of convenience of any stay order is to require undertakings from the defendants to make an application to the Court of Appeal for expedition of the hearing, thereby minimising the risks of further damage to the property and also the undertaking often given to prosecute the appeal with all due expedition. That latter undertaking would need to be made irrespective of whether a formal order for expedition has been made by a Court of Appeal judge.

15. In relation to the financial matters, I note that Mr Tang in his affidavit refers to the effect on his business of the money already garnisheed. The evidence on this matter is limited and I note that the property is an investment property. It seems to me that the plaintiff can be protected by the provision of an irrevocable bank guarantee within a certain period. I note that both undertakings referred to have been offered on behalf of the defendants through their solicitor, Ms Button. In my view, the matter needs to be progressed quickly and the undertaking to make an expedition application would seek to achieve that. Balancing all of the factors that I have referred to, I am just satisfied that a stay is appropriate with the protections which I have indicated.

[The orders were then discussed and made, and there followed submissions as to costs.]

16. An application has been made on behalf of the defendants to vacate the order as to costs made on 20 February 2026. The defendants were not in a position to proceed on that day and sought an adjournment to put on more evidence.

17. I reject the application as inappropriate in the light of those circumstances, exercising the discretion as to costs which I have under s 98 of the Civil Procedure Act 2005 (NSW).

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