Endormer Pty Ltd (in liq) v Australian Guarantee Corporation Ltd [2001] FCA 15

Endormer Pty Ltd (in liq) v Australian Guarantee Corporation Ltd [2001] FCA 15

Ms Paterson had not filed a notice of appeal from Gyles J's orders or commenced proceedings in the Supreme Court of New South Wales under the Contracts Review Act 1980 (NSW), and had not shown a serious question to be tried that would make execution of the writ inconsistent with possible final relief. The argued jurisdictional and Contracts Review Act points did not provide a persuasive basis for a further stay. Nonetheless, practical necessity in vacating the Property justified only a short stay of seven days, with costs payable by Ms Paterson to AGC.

Jurisdiction
Australia
Judgment Date
11 January 2001
Procedural Posture
Motion for Stay of Execution of Writ of Possession / Duty Judge Hearing After Judgment and Orders of Gyles J; Execution of Writ Pending
Outcome
Motion allowed only to the extent of a short stay of execution; Ms Paterson ordered to pay AGC's costs of the motion.
Legal Topics
['stay of Execution' 'writ of Possession' 'mortgage Enforcement' 'contracts Review Act Jurisdiction' 'costs of Motion']
['civil Procedure' 'property Law' 'security Enforcement'] ['stay of Execution' 'writ of Possession' 'mortgage Enforcement' 'contracts Review Act Jurisdiction' 'costs of Motion']

Case Brief

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Procedural Posture

Motion for Stay of Execution of Writ of Possession / Duty Judge Hearing After Judgment and Orders of Gyles J; Execution of Writ Pending

Legal Issues

  1. 1 ['Whether execution of the writ of possession issued on 6 December 2000 should be stayed in relation to 22 Barclay Road, North Rocks.' 'Whether Ms Paterson had shown a serious question to be tried or other basis for a further stay after not filing a notice of appeal or an application under the Contracts Review Act 1980 (NSW).' 'Whether practical necessity in vacating the Property justified a short stay.']

Ratio Decidendi

Ms Paterson had not filed a notice of appeal from Gyles J's orders or commenced proceedings in the Supreme Court of New South Wales under the Contracts Review Act 1980 (NSW), and had not shown a serious question to be tried that would make execution of the writ inconsistent with possible final relief. The argued jurisdictional and Contracts Review Act points did not provide a persuasive basis for a further stay. Nonetheless, practical necessity in vacating the Property justified only a short stay of seven days, with costs payable by Ms Paterson to AGC.

Court Disposition

Motion allowed only to the extent of a short stay of execution; Ms Paterson ordered to pay AGC's costs of the motion.

Orders

  • ['Execution of the writ of possession issued on 6 December 2000 be stayed until midnight on 18 January 2001.' "The fourth cross-respondent pay the cross-claimant's costs of the motion brought by notice of motion filed by the fourth cross-respondent on 8 January 2001."]