G & G Mikhael Pty Ltd v Chalak (No 2) [2022] NSWSC 529

G & G Mikhael Pty Ltd v Chalak (No 2) [2022] NSWSC 529

A stay was warranted because the property was the subject of the possession orders and any successful appeal could be rendered nugatory if the stay were refused. Although there were unsatisfactory aspects of the applicant's evidence and conduct, the balance of convenience favoured a stay having regard to the applicant's family home, the likely timing of the appeal process, the absence of a demonstrated pressing hardship to the respondent, and the proposed payment of $20,000. The applicant also showed a sufficiently arguable case, particularly on whether the pleadings and evidence raised an issue that the mortgage was not enforceable at all.

Jurisdiction
Australia
Judgment Date
12 April 2022
Procedural Posture
Notice of Motion for Stay Pending Completion of Appeal Process in Possession of Land Proceedings / After Summary Judgment and Writ of Possession Orders; Pending Application for Leave to Appeal in Proceedings 2022/76853
Outcome
Stay granted on conditions.
Legal Topics
['possession of Land' 'stay Pending Appeal' 'summary Judgment' 'writ of Possession' 'balance of Convenience' 'leave to Appeal']
['land Law' 'civil Procedure'] ['possession of Land' 'stay Pending Appeal' 'summary Judgment' 'writ of Possession' 'balance of Convenience' 'leave to Appeal']

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Procedural Posture

Notice of Motion for Stay Pending Completion of Appeal Process in Possession of Land Proceedings / After Summary Judgment and Writ of Possession Orders; Pending Application for Leave to Appeal in Proceedings 2022/76853

Legal Issues

  1. 1 ['Whether the orders made on 18 February 2022 for possession, writ of possession and judgment should be stayed pending completion of the appeal process.' 'Whether the applicant had shown an arguable case or reasonable prospects sufficient to support a stay.' 'Whether the balance of convenience favoured granting a stay, including the risk that the appeal would be rendered nugatory if the property were sold.' 'Whether any stay should be conditioned on terms protecting the respondent.']

Ratio Decidendi

A stay was warranted because the property was the subject of the possession orders and any successful appeal could be rendered nugatory if the stay were refused. Although there were unsatisfactory aspects of the applicant's evidence and conduct, the balance of convenience favoured a stay having regard to the applicant's family home, the likely timing of the appeal process, the absence of a demonstrated pressing hardship to the respondent, and the proposed payment of $20,000. The applicant also showed a sufficiently arguable case, particularly on whether the pleadings and evidence raised an issue that the mortgage was not enforceable at all.

Court Disposition

Stay granted on conditions.

Orders

  • ['The orders made on 18 February 2022 be stayed pending completion of the appeal process in proceedings 2022/76853.' 'Order 1 be conditioned on compliance by the applicant with the rules of the Court in relation to the application for leave to appeal or any subsequent appeal.' 'Order 1 be conditioned on compliance...