Kowalczuk v Accom Finance Pty Ltd [2007] NSWCA 225

Kowalczuk v Accom Finance Pty Ltd [2007] NSWCA 225

The usual Inglis requirement did not apply because the existence of the power of sale over the Berowra property was under attack. The applicant showed a sufficient prospect of success to warrant considering a stay, and the balance of convenience favoured a stay because sale proceeds would most likely remain in trust pending the appeal, the practical difference to the mortgagee between immediate sale and sale after the appeal was comparatively small, the accepted evidence indicated that rent could meet the first mortgage payments, and the appellant undertook to proceed with expedition.

Jurisdiction
Australia
Judgment Date
20 August 2007
Procedural Posture
Application for Stay Pending Appeal / Court of Appeal Stay Application
Outcome
Stay granted pending determination of the appeal.
Legal Topics
['stay of Judgment Pending Appeal' 'judicial Sale' 'mortgage Security' 'power of Sale' 'balance of Convenience' 'contracts Review Act' 'trade Practices Act']
['appeals' 'mortgage Law' 'equity' 'consumer Protection'] ['stay of Judgment Pending Appeal' 'judicial Sale' 'mortgage Security' 'power of Sale' 'balance of Convenience' 'contracts Review Act' 'trade Practices Act']

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Procedural Posture

Application for Stay Pending Appeal / Court of Appeal Stay Application

Legal Issues

  1. 1 ['Whether orders for possession and judicial sale of the Berowra property should be stayed pending determination of the appeal.' 'Whether the usual principle requiring the mortgagor to repay or pay into court all principal and interest claimed by the mortgagee applied where the existence of the power of sale was under attack.' 'Whether the applicant demonstrated a proper basis for a stay, including sufficient prospects of success and a balance of convenience favouring a stay.']

Ratio Decidendi

The usual Inglis requirement did not apply because the existence of the power of sale over the Berowra property was under attack. The applicant showed a sufficient prospect of success to warrant considering a stay, and the balance of convenience favoured a stay because sale proceeds would most likely remain in trust pending the appeal, the practical difference to the mortgagee between immediate sale and sale after the appeal was comparatively small, the accepted evidence indicated that rent could meet the first mortgage payments, and the appellant undertook to proceed with expedition.

Court Disposition

Stay granted pending determination of the appeal.

Orders

  • ['A full Notice of Appeal be filed by 5.00pm Friday, 24 August 2007, or at such earlier date as counsel is able to settle it to his satisfaction.' 'The Court noted an undertaking from the Appellant to proceed with expedition with the appeal.' 'The orders of Justice Windeyer made 17 July 2007 be stayed pending the...