Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2015] NSWCA 323

Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2015] NSWCA 323

The stay should be discharged, but with effect from 9.00 am on Monday 2 November 2015, because the Health Service was ready, willing and able to give possession, Macquarie’s concerns about later damages did not justify maintaining the stay, and a short deferral was appropriate in the interests of justice to permit an orderly transition of operational control of the car park site. No further conditions were warranted. The Health Service, having succeeded and having been required by Macquarie’s position to bring the motion, was entitled to its costs.

Jurisdiction
Australia
Judgment Date
15 October 2015
Procedural Posture
Application to Discharge Stay Order Made by the Court of Appeal / Notice of Motion in the Court of Appeal
Outcome
Stay discharged with effect from 9.00 am on Monday 2 November 2015; Macquarie ordered to pay the Health Service's costs of the notice of motion filed on 1 October 2015.
Legal Topics
['discharge of Stay' 'possession Orders' 'orderly Transition of Possession' 'costs of Motion' 'estoppel']
['civil Procedure' 'appellate Procedure'] ['discharge of Stay' 'possession Orders' 'orderly Transition of Possession' 'costs of Motion' 'estoppel']

Case Brief

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Procedural Posture

Application to Discharge Stay Order Made by the Court of Appeal / Notice of Motion in the Court of Appeal

Legal Issues

  1. 1 ['Whether the stay of the order for possession made on 13 December 2010 should be dissolved or lifted.' 'Whether discharge of the stay should take effect immediately or be deferred for a short period to permit an orderly transition of the properties.' 'Whether any further conditions should be attached to the discharge of the stay.' 'Who should pay the costs of the notice of motion.']

Ratio Decidendi

The stay should be discharged, but with effect from 9.00 am on Monday 2 November 2015, because the Health Service was ready, willing and able to give possession, Macquarie’s concerns about later damages did not justify maintaining the stay, and a short deferral was appropriate in the interests of justice to permit an orderly transition of operational control of the car park site. No further conditions were warranted. The Health Service, having succeeded and having been required by Macquarie’s position to bring the motion, was entitled to its costs.

Court Disposition

Stay discharged with effect from 9.00 am on Monday 2 November 2015; Macquarie ordered to pay the Health Service's costs of the notice of motion filed on 1 October 2015.

Orders

  • ['Stay ordered by this Court by order 7(2) made on 13 December 2010, be discharged with effect from 9.00 am on Monday 2 November 2015.' "Respondent (Macquarie) to pay the applicant's costs of the notice of motion filed on 1 October 2015."]