123 259 932 Pty Ltd v Cessnock City Council (No 2) [2023] NSWCA 89

123 259 932 Pty Ltd v Cessnock City Council (No 2) [2023] NSWCA 89

Exceptional circumstances exist justifying a stay: there is a real risk that, absent a stay, recovery of funds would be rendered difficult if the appeal succeeds, and although the prospects of special leave are not high, they are not insubstantial; balance of convenience favours the stay, as no particular prejudice to the appellant is established.

Parties
Appellant; Respondent on the Motion: 123 259 932 Pty Ltd; Respondent; Applicant on the Motion: Cessnock City Council
Jurisdiction
Australia
Judgment Date
09 May 2023
Procedural Posture
Civil Appeal / Application for Stay Pending Special Leave to Appeal to High Court
Outcome
Stay of execution of orders granted subject to conditions; costs of application for stay to appellant.
Legal Topics
Stay of Proceedings, Special Leave to Appeal, Balance of Convenience, Exceptional Circumstances
Civil Procedure Stay of Proceedings Special Leave to Appeal Balance of Convenience Exceptional Circumstances

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Parties

123 259 932 Pty Ltd

Appellant; Respondent on the Motion

Cessnock City Council

Respondent; Applicant on the Motion

Procedural Posture

Civil Appeal / Application for Stay Pending Special Leave to Appeal to High Court

Legal Issues

  1. 1 Whether a stay of execution should be granted pending application for special leave to appeal to the High Court
  2. 2 What factors are relevant in considering a stay in these circumstances

Ratio Decidendi

Exceptional circumstances exist justifying a stay: there is a real risk that, absent a stay, recovery of funds would be rendered difficult if the appeal succeeds, and although the prospects of special leave are not high, they are not insubstantial; balance of convenience favours the stay, as no particular prejudice to the appellant is established.

Court Disposition

Stay of execution of orders granted subject to conditions; costs of application for stay to appellant.

Orders

  • The Court notes the undertaking of Cessnock City Council to prosecute its application for special leave to appeal and any appeal in the High Court with due diligence.
  • Subject to any orders of the High Court of Australia, execution of orders 2, 3 and 4 made by this Court on 16 March 2023 is stayed until determination of the respondent's application for special leave to appeal to the High Court from those orders and, if special leave is granted, until determination of the appeal to...