Commonwealth Bank of Australia v Roskott (No.2) [2014] NSWSC 1093

Commonwealth Bank of Australia v Roskott (No.2) [2014] NSWSC 1093

The interests of justice do not require the granting of a stay of execution as the applicants' prospects of success on appeal are remote, no substantial defence has been advanced, hardship has not been particularly evidenced, and the balance of convenience favours the Bank.

Jurisdiction
Australia
Judgment Date
29 July 2014
Procedural Posture
Civil / Application for Stay Pending Appeal
Outcome
Notice of Motion dismissed; stay of Writ of Possession refused; costs ordered against applicants/defendants.
Legal Topics
['stay Pending Appeal' 'default Judgment' 'possession Orders']
['civil Procedure' 'mortgages'] ['stay Pending Appeal' 'default Judgment' 'possession Orders']

Case Brief

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Procedural Posture

Civil / Application for Stay Pending Appeal

Legal Issues

  1. 1 ['Whether a stay of the Writ of Possession should be granted pending appeal' 'Whether the Bill of Exchange defence provides a reasonable prospect of success on appeal' 'Whether hardship justifies granting a stay']

Ratio Decidendi

The interests of justice do not require the granting of a stay of execution as the applicants' prospects of success on appeal are remote, no substantial defence has been advanced, hardship has not been particularly evidenced, and the balance of convenience favours the Bank.

Court Disposition

Notice of Motion dismissed; stay of Writ of Possession refused; costs ordered against applicants/defendants.

Orders

  • ['Dismiss the Notice of Motion filed on 23 July 2014.' 'Refuse to grant a stay of the Writ of Possession.' "Order the applicants/defendants to pay the plaintiff/respondent's costs of the Notice of Motion."]