EVANS v CBFC LIMITED [1993] NSWCA 90

EVANS v CBFC LIMITED [1993] NSWCA 90

The claimants failed to properly plead fraud and could not make out a case for a stay of execution pending appeal, as substantial monies advanced were used to satisfy prior valid mortgages, disqualifying relief under equity or the Contracts Review Act.

Parties
Claimant: Evans; Opponent: CBFC Limited; Claimant: Tresare Pty Ltd; Claimant: Mrs Evans
Jurisdiction
Australia
Judgment Date
22 November 1993
Procedural Posture
Civil / Application for Stay of Execution Pending Appeal
Outcome
Application for stay dismissed with costs
Legal Topics
Mortgage Law, Fraud Pleading, Contracts Review Act, Stay of Execution
Property Law Equity Mortgage Law Fraud Pleading Contracts Review Act Stay of Execution

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 3 Authorities cited 5 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Evans

Claimant

CBFC Limited

Opponent

Tresare Pty Ltd

Claimant

Mrs Evans

Claimant

Procedural Posture

Civil / Application for Stay of Execution Pending Appeal

Legal Issues

  1. 1 Whether claimants are entitled to a stay of execution on judgment for possession pending appeal
  2. 2 Whether allegations of fraud were properly pleaded to justify a stay
  3. 3 Whether relief under the Contracts Review Act entitles claimants to a stay

Ratio Decidendi

The claimants failed to properly plead fraud and could not make out a case for a stay of execution pending appeal, as substantial monies advanced were used to satisfy prior valid mortgages, disqualifying relief under equity or the Contracts Review Act.

Court Disposition

Application for stay dismissed with costs

Orders

  • Motion for stay is dismissed
  • Claimants must pay the opponent's costs