SCHEIBNER v NATIONAL AUSTRALIA BANK LTD [1993] NSWCA 243

SCHEIBNER v NATIONAL AUSTRALIA BANK LTD [1993] NSWCA 243

On the material provided, Dr Scheibner did not establish a proper basis for granting a stay of execution. The affidavit failed to provide sufficient evidence regarding the merits of the appeal or balance of convenience, and so the Court was not satisfied it should grant a stay of the judgment pending appeal.

Parties
Claimant: Dr Viera Scheibner; Opponent: National Australia Bank Ltd
Jurisdiction
Australia
Judgment Date
13 December 1993
Procedural Posture
Application for Stay of Execution Pending Appeal / Interlocutory (stay Sought Pending Appeal)
Outcome
Stay application dismissed; expedition of hearing ordered
Legal Topics
Stay of Execution, Appeals, Writ of Possession, Mortgages
Practice and Procedure Civil Procedure Stay of Execution Appeals Writ of Possession Mortgages

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 2 Authorities cited 5 Party arguments 2
Sign in to unlock

Parties

Dr Viera Scheibner

Claimant

National Australia Bank Ltd

Opponent

Procedural Posture

Application for Stay of Execution Pending Appeal / Interlocutory (stay Sought Pending Appeal)

Legal Issues

  1. 1 Whether a stay of execution of judgment and writ of possession should be granted pending appeal
  2. 2 What evidence is required to support an application for a stay
  3. 3 How the prospects of success and balance of convenience affect the grant of a stay

Ratio Decidendi

On the material provided, Dr Scheibner did not establish a proper basis for granting a stay of execution. The affidavit failed to provide sufficient evidence regarding the merits of the appeal or balance of convenience, and so the Court was not satisfied it should grant a stay of the judgment pending appeal.

Court Disposition

Stay application dismissed; expedition of hearing ordered

Orders

  • Order expedition of the hearing of the appeal category B so that the appeal will be heard in February or March 1994 on a date fixed by the Registrar
  • Motion for a stay dismissed with costs