Sutton, Construction, Forestry, Mining and Energy Union v Sharp, The State of Victoria, Atkinson, Ferguson & Young[1995] IRCA 579

Sutton, Construction, Forestry, Mining and Energy Union v Sharp, The State of Victoria, Atkinson, Ferguson & Young[1995] IRCA 579

The stay was extended for the real estate because transfer to CFMEU before the appeals would confer no practical advantage, CFMEU already had possession and would undertake not to dispose of the properties, and successful appeals would make the transfers and retransfers unnecessary and involve unnecessary work and expense. The stay was refused for personal property, subject to an undertaking, because CFMEU could repay or retransfer the assets if the appeals succeeded and any loss of interest to Dr Sharp could be protected by an undertaking to pay such interest as the Court may specify.

Jurisdiction
Australia
Judgment Date
28 September 1995
Procedural Posture
Application for Stay of Order Pending Appeal / Extempore Reasons on an Application by Some Respondents for a Stay of Order 4 Made on 24 August 1995 Pending Determination of Appeals
Outcome
Stay extended for real estate; applications for extension of stay refused for assets other than real estate subject to filing of an undertaking within seven days; liberty to apply reserved if no undertaking is filed.
Legal Topics
['stay Pending Appeal' 'special Circumstances' 'real Estate Transfer' 'personal Property' 'undertakings to the Court']
['civil Procedure' 'appellate Procedure' 'industrial Relations'] ['stay Pending Appeal' 'special Circumstances' 'real Estate Transfer' 'personal Property' 'undertakings to the Court']

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Procedural Posture

Application for Stay of Order Pending Appeal / Extempore Reasons on an Application by Some Respondents for a Stay of Order 4 Made on 24 August 1995 Pending Determination of Appeals

Legal Issues

  1. 1 ['Whether order 4 made on 24 August 1995 should be stayed or its stay extended pending determination of the appeals.' 'Whether special circumstances justified a stay in relation to real estate consisting of three properties at Carlton in Victoria.' 'Whether special circumstances justified a stay in relation to personal property, predominantly bills of exchange and small bank account balances.' 'Whether an undertaking by CFMEU would adequately protect the respondents if the appeals succeeded.']

Ratio Decidendi

The stay was extended for the real estate because transfer to CFMEU before the appeals would confer no practical advantage, CFMEU already had possession and would undertake not to dispose of the properties, and successful appeals would make the transfers and retransfers unnecessary and involve unnecessary work and expense. The stay was refused for personal property, subject to an undertaking, because CFMEU could repay or retransfer the assets if the appeals succeeded and any loss of interest to Dr Sharp could be protected by an undertaking to pay such interest as the Court may specify.

Court Disposition

Stay extended for real estate; applications for extension of stay refused for assets other than real estate subject to filing of an undertaking within seven days; liberty to apply reserved if no undertaking is filed.

Orders

  • ['Insofar as it relates to real estate, the operation of order 4 made on 24 August 1995 is extended until the final determination of the appeals or earlier order of a judge.' 'In relation to assets other than real estate, subject to the filing within seven days of the specified undertaking, the applications for...