Milevsky v Carson [2005] NSWCA 265

Milevsky v Carson [2005] NSWCA 265

Enforcement of the property transfer order should be stayed, as immediate enforcement may prejudice both parties, and the opponent’s equity should remain unencumbered pending appeal. Costs order is not stayed, as per court practice.

Parties
Claimant: Victor Milevsky; Opponent: Pamela Brenda Carson
Jurisdiction
Australia
Judgment Date
08 August 2005
Procedural Posture
Appeal / Motion for Stay Pending Appeal
Outcome
Enforcement of order 3 stayed pending appeal; notice of motion otherwise dismissed; costs of motion to be costs in appeal; solicitor to hold certificate of title and discharge of mortgage in safe custody.
Legal Topics
Stay of Execution, De Facto Relationships, Property Transfer, Costs
Family Law Stay of Execution De Facto Relationships Property Transfer Costs

Case Brief

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Parties

Victor Milevsky

Claimant

Pamela Brenda Carson

Opponent

Procedural Posture

Appeal / Motion for Stay Pending Appeal

Legal Issues

  1. 1 Whether enforcement of property transfer order should be stayed pending appeal
  2. 2 Whether opponent should be permitted to mortgage the property during appeal
  3. 3 Appropriateness of staying costs order

Ratio Decidendi

Enforcement of the property transfer order should be stayed, as immediate enforcement may prejudice both parties, and the opponent’s equity should remain unencumbered pending appeal. Costs order is not stayed, as per court practice.

Court Disposition

Enforcement of order 3 stayed pending appeal; notice of motion otherwise dismissed; costs of motion to be costs in appeal; solicitor to hold certificate of title and discharge of mortgage in safe custody.

Orders

  • Enforcement of order 3 made by Nicholas J on 13 May 2005, insofar as not already complied with, be stayed until the determination of the appeal or further order of the Court.
  • Notice of motion otherwise dismissed.