Abram, Joseph & Anor v Bank of New Zealand & Ors [1995] FCA 862

Abram, Joseph & Anor v Bank of New Zealand & Ors [1995] FCA 862

Although Foster J was not prepared to find that the appeal had no prospects of success, its prospects were fairly slight. The debt would far exceed the property's value if the first respondent succeeded, no payments had been made since June 1992, the property was currently uninsured and likely to remain so unless the first respondent obtained possession, and damages could provide relief if the appellants later succeeded. The overall justice of the case therefore required dismissal of the motion for a stay, with enforcement of the writ of possession deferred until 17 October 1995.

Jurisdiction
Australia
Judgment Date
26 September 1995
Procedural Posture
Notice of Motion for Stay Pending Appeal / Application to Stay Orders Made by Moore J on 11 August 1995 Pending Determination of Appeal
Outcome
Notice of Motion dismissed; enforcement of the Writ of Possession deferred until 17 October 1995; appellants ordered to pay the first respondent's costs of the Notice of Motion.
Legal Topics
['stay Pending Appeal' 'writ of Possession' 'mortgagee Power of Sale' 'real Property Possession' 'trade Practices Act Claims' 'uninsured Mortgaged Property']
['civil Procedure' 'mortgage Law' 'property Law' 'consumer Protection'] ['stay Pending Appeal' 'writ of Possession' 'mortgagee Power of Sale' 'real Property Possession' 'trade Practices Act Claims' 'uninsured Mortgaged Property']

Case Brief

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Procedural Posture

Notice of Motion for Stay Pending Appeal / Application to Stay Orders Made by Moore J on 11 August 1995 Pending Determination of Appeal

Legal Issues

  1. 1 ["Whether orders granting the first respondent possession of the appellants' family home should be stayed until determination of the appeal." 'Whether the appeal had sufficient prospects of success to justify a stay.' 'Whether prejudice to the first respondent, including increasing debt, non-payment and lack of insurance, weighed against a stay.']

Ratio Decidendi

Although Foster J was not prepared to find that the appeal had no prospects of success, its prospects were fairly slight. The debt would far exceed the property's value if the first respondent succeeded, no payments had been made since June 1992, the property was currently uninsured and likely to remain so unless the first respondent obtained possession, and damages could provide relief if the appellants later succeeded. The overall justice of the case therefore required dismissal of the motion for a stay, with enforcement of the writ of possession deferred until 17 October 1995.

Court Disposition

Notice of Motion dismissed; enforcement of the Writ of Possession deferred until 17 October 1995; appellants ordered to pay the first respondent's costs of the Notice of Motion.

Orders

  • ['The Notice of Motion be dismissed.' 'The Writ of Possession not be enforced until 17 October 1995.' "The Appellants pay the First Respondent's costs of the Notice of Motion."]