Critchley & Ors v Conway & Anor (No 2) [2009] NSWCA 217

Critchley & Ors v Conway & Anor (No 2) [2009] NSWCA 217

A stay should be granted on the balance of convenience given ongoing use of the tanks by the second appellant, absence of immediate need by the respondent, an expedited appeal, and a sufficient but not overwhelming case argued by the appellants; conditions are required to preserve the respondent’s interests.

Parties
First Appellant: Stephen Critchley; Second Appellant: Mudgee Wines Pty Limited; Third Appellant: Eurunderee Wines Pty Limited; Fourth Appellant: William James Whalley; Fifth Appellant: Jane Margaret McLean; First Respondent: David Conway; Second Respondent: Mark Norman Thompson
Jurisdiction
Australia
Judgment Date
27 July 2009
Procedural Posture
Application for Stay of Judgment Pending Appeal / Ruling on Stay Application
Outcome
Application for stay granted upon conditions
Legal Topics
Stay of Judgment, Summary Judgment, Appeal Conditions
Procedure Stay of Judgment Summary Judgment Appeal Conditions

Case Brief

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Parties

Stephen Critchley

First Appellant

Mudgee Wines Pty Limited

Second Appellant

Eurunderee Wines Pty Limited

Third Appellant

William James Whalley

Fourth Appellant

Jane Margaret McLean

Fifth Appellant

David Conway

First Respondent

Mark Norman Thompson

Second Respondent

Procedural Posture

Application for Stay of Judgment Pending Appeal / Ruling on Stay Application

Legal Issues

  1. 1 Whether a stay of the order to deliver up items should be granted pending determination of appeal
  2. 2 Appropriate conditions for granting a stay
  3. 3 Entitlement to possession of storage tanks under rental agreement

Ratio Decidendi

A stay should be granted on the balance of convenience given ongoing use of the tanks by the second appellant, absence of immediate need by the respondent, an expedited appeal, and a sufficient but not overwhelming case argued by the appellants; conditions are required to preserve the respondent’s interests.

Court Disposition

Application for stay granted upon conditions

Orders

  • Order that the order made by Debelle AJ on 5 June 2009 for appellants to deliver up certain items be stayed until disposition of the appeal or further order
  • Appellants to pay to the Bank of Queensland the monthly rental sum of $5,416.67 on or before the due date