WILCOX & ANOR v RICHARDSON & ANOR [1999] NSWCA 88

WILCOX & ANOR v RICHARDSON & ANOR [1999] NSWCA 88

The applicants did not demonstrate that this was an appropriate case for a stay. The judgment had been given about eighteen months earlier, no appeal was before the Court, the illegality point was raised only recently, the evidence was not particularly satisfactory, and the prospect that a statutory demand might lead to winding up did not establish that the pending application would be lost because any liquidator could decide whether to proceed.

Jurisdiction
Australia
Judgment Date
30 March 1999
Procedural Posture
Application for Stay of Execution of Judgment, Including Cost Orders / Before Sheller JA on Part of a Notice of Motion Seeking a Stay Pending Further Order, With a Separate Application Pending to Set Aside the Court of Appeal Judgment of 31 July 1997
Outcome
Application dismissed with costs.
Legal Topics
['stay of Execution of Judgment' 'pending Application to Set Aside Judgment' 'statutory Demand' 'alleged Illegality of Sublease' 'risk Appeal or Application May Be Rendered Nugatory']
['practice and Procedure'] ['stay of Execution of Judgment' 'pending Application to Set Aside Judgment' 'statutory Demand' 'alleged Illegality of Sublease' 'risk Appeal or Application May Be Rendered Nugatory']

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Procedural Posture

Application for Stay of Execution of Judgment, Including Cost Orders / Before Sheller JA on Part of a Notice of Motion Seeking a Stay Pending Further Order, With a Separate Application Pending to Set Aside the Court of Appeal Judgment of 31 July 1997

Legal Issues

  1. 1 ["Whether execution on the judgment, including cost orders, should be stayed pending further order while an application to set aside the Court of Appeal's judgment is pending." 'Whether the risk that a statutory demand may lead to Kiama Developments being wound up, and that a liquidator may not pursue the pending application, justified a stay.' 'Whether the late-raised allegation that the sublease was illegal supported granting a stay.']

Ratio Decidendi

The applicants did not demonstrate that this was an appropriate case for a stay. The judgment had been given about eighteen months earlier, no appeal was before the Court, the illegality point was raised only recently, the evidence was not particularly satisfactory, and the prospect that a statutory demand might lead to winding up did not establish that the pending application would be lost because any liquidator could decide whether to proceed.

Court Disposition

Application dismissed with costs.

Orders

  • ['The application for order three in the notice of motion is dismissed with costs.']