Caldar and The Estate of the Late Mrs Rachel Isobel Gittoes v Public Trustee of New South Wales [2005] NSWCA 166

Caldar and The Estate of the Late Mrs Rachel Isobel Gittoes v Public Trustee of New South Wales [2005] NSWCA 166

Because the writ of possession had already been executed on 17 March 2005, the summons and notice of motion seeking a stay of execution could serve no useful purpose; the proceedings were frivolous, vexatious and an abuse of process, and the written material disclosed no basis for leave to appeal or for orders in Mr Caldar's favour.

Jurisdiction
Australia
Judgment Date
11 May 2005
Procedural Posture
Summons for Leave to Appeal From an Interlocutory Order and Notice of Motion Under S 46(4) of the Supreme Court Act 1970 / Court of Appeal Determination of Summons and Notice of Motion
Outcome
Summons and notice of motion dismissed with costs.
Legal Topics
['abuse of Process of Court' 'frivolous and Vexatious Proceedings' 'stay of Execution' 'writ of Possession' 'leave to Appeal']
['practice and Procedure'] ['abuse of Process of Court' 'frivolous and Vexatious Proceedings' 'stay of Execution' 'writ of Possession' 'leave to Appeal']

Case Brief

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Procedural Posture

Summons for Leave to Appeal From an Interlocutory Order and Notice of Motion Under S 46(4) of the Supreme Court Act 1970 / Court of Appeal Determination of Summons and Notice of Motion

Legal Issues

  1. 1 ["Whether leave should be granted to appeal from Hidden J's refusal to stay execution of the writ of possession." 'Whether orders made by Tobias J refusing to stay execution of the writ of possession should be discharged or varied under s 46(4) of the Supreme Court Act 1970.' 'Whether the summons and notice of motion were frivolous, vexatious and an abuse of process after the writ of possession had been executed.']

Ratio Decidendi

Because the writ of possession had already been executed on 17 March 2005, the summons and notice of motion seeking a stay of execution could serve no useful purpose; the proceedings were frivolous, vexatious and an abuse of process, and the written material disclosed no basis for leave to appeal or for orders in Mr Caldar's favour.

Court Disposition

Summons and notice of motion dismissed with costs.

Orders

  • ['Summons of 4 January 2005 dismissed with costs.' 'Notice of motion of 4 April 2005 dismissed with costs.']