Zhu v Wang [2021] NSWCA 149

Zhu v Wang [2021] NSWCA 149

The Court granted a stay only until publication of the Court of Appeal's reasons after an expedited hearing because the appellants' sole ground of appeal was reasonably arguable and, by the barest of margins, the balance of convenience favoured preserving the position pending appeal. The stay was justified despite weak financial evidence because there was some risk that the corporate appellants' insolvency assertions might prove correct if no stay were granted, but the respondents' position and concerns about the transfer of the business required the appeal to be heard with expedition.

Jurisdiction
Australia
Judgment Date
16 July 2021
Procedural Posture
Application for Stay Pending Appeal / Notice of Motion in the Court of Appeal Seeking Stay of Enforcement of the Primary Judgment and Stay of Execution of a Writ for Levy of Property Pending Determination of the Appeal
Outcome
Stay granted pending publication of reasons after an expedited appeal hearing; appeal timetable varied; each party to pay its own costs of the stay application.
Legal Topics
['stay Pending Appeal' 'enforcement of Judgment' 'writ for Levy of Property' 'balance of Convenience' 'repudiation of Contract' 'management Agreement']
['civil Procedure' 'appeals' 'contract Law'] ['stay Pending Appeal' 'enforcement of Judgment' 'writ for Levy of Property' 'balance of Convenience' 'repudiation of Contract' 'management Agreement']

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Procedural Posture

Application for Stay Pending Appeal / Notice of Motion in the Court of Appeal Seeking Stay of Enforcement of the Primary Judgment and Stay of Execution of a Writ for Levy of Property Pending Determination of the Appeal

Legal Issues

  1. 1 ['Whether enforcement of the primary judgment should be stayed pending determination of the appeal.' 'Whether execution of the writ for levy of property dated 22 April 2021 should be stayed pending determination of the appeal.' 'Whether the appeal was reasonably arguable.' "Whether the balance of convenience favoured a stay, including in light of the appellants' evidence about financial capacity and the respondents' proposed undertaking."]

Ratio Decidendi

The Court granted a stay only until publication of the Court of Appeal's reasons after an expedited hearing because the appellants' sole ground of appeal was reasonably arguable and, by the barest of margins, the balance of convenience favoured preserving the position pending appeal. The stay was justified despite weak financial evidence because there was some risk that the corporate appellants' insolvency assertions might prove correct if no stay were granted, but the respondents' position and concerns about the transfer of the business required the appeal to be heard with expedition.

Court Disposition

Stay granted pending publication of reasons after an expedited appeal hearing; appeal timetable varied; each party to pay its own costs of the stay application.

Orders

  • ['Vacate the listing of the appeal on 6 October 2021 and in lieu thereof list the appeal for hearing on Thursday 26 August 2021 with a 1 day estimate.' "The respondents to file and serve written submissions of no more than 20 pages by 4pm on 6 August 2021 together with any application to rely on a notice of...