Zian Fu v Kiem Dang Investment Pty Ltd [2009] NSWCA 380

Zian Fu v Kiem Dang Investment Pty Ltd [2009] NSWCA 380

The stay was refused because the appellants did not show a real risk of prejudice or damage that would not be redressed by a successful appeal: there was no evidence that the respondent would be unable to repay the money and no evidence that enforcement would deprive the appellants of the means to pursue the appeal. The asserted appeal grounds did not establish a particularly strong case, because even if the factual challenges succeeded the appellants would still face substantial difficulties in showing a fundamental breach of the lease or a substantial effect on the result.

Jurisdiction
Australia
Judgment Date
23 November 2009
Procedural Posture
Application for Stay of Orders Pending Appeal / Court of Appeal Application
Outcome
Application dismissed with costs.
Legal Topics
['stay of Orders Pending Appeal' 'requirements for Grant of Stay' 'risk of Prejudice or Damage' 'serious Issues on Appeal']
['civil Procedure' 'appellate Procedure'] ['stay of Orders Pending Appeal' 'requirements for Grant of Stay' 'risk of Prejudice or Damage' 'serious Issues on Appeal']

Case Brief

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Procedural Posture

Application for Stay of Orders Pending Appeal / Court of Appeal Application

Legal Issues

  1. 1 ['Whether the judgment and orders of the primary judge should be stayed pending determination of the appeal.' 'Whether the appeal raised serious issues for determination by the appellate Court.' 'Whether there was a real risk that the appellants would suffer prejudice or damage if a stay was not granted that would not be redressed by a successful appeal.']

Ratio Decidendi

The stay was refused because the appellants did not show a real risk of prejudice or damage that would not be redressed by a successful appeal: there was no evidence that the respondent would be unable to repay the money and no evidence that enforcement would deprive the appellants of the means to pursue the appeal. The asserted appeal grounds did not establish a particularly strong case, because even if the factual challenges succeeded the appellants would still face substantial difficulties in showing a fundamental breach of the lease or a substantial effect on the result.

Court Disposition

Application dismissed with costs.

Orders

  • ['The application is dismissed with costs.']