Wentworth v. Rogers & Anor. [2003] NSWCA 346

Wentworth v. Rogers & Anor. [2003] NSWCA 346

Because the appeal was not without some chance of success and there was a reasonable possibility that payment out of funds or removal of restraints could render a successful appeal nugatory, the balance of convenience favoured continuing the restraints and staying Howie J's orders pending appeal, but only for a limited period and subject to qualifications allowing consented transactions, reasonable short-term leasing, transactions after 42 days' notice, and payment out after 42 days' notice.

Jurisdiction
Australia
Judgment Date
25 November 2003
Procedural Posture
Appeal Application for Stay / Application by the Claimant for a Stay of Orders Made by Howie J on 27 October 2003 and Continuation of Restraints Pending Appeal
Outcome
Stay granted with conditions; time extended; costs of the application to be costs in the appeal.
Legal Topics
['stay Pending Appeal' 'balance of Convenience' 'conditions of Stay' 'fraudulent Conveyances' 'resulting Trust' 'undertaking as to Damages']
['practice and Procedure' 'appellate Procedure' 'conveyancing' 'property Law'] ['stay Pending Appeal' 'balance of Convenience' 'conditions of Stay' 'fraudulent Conveyances' 'resulting Trust' 'undertaking as to Damages']

Case Brief

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Procedural Posture

Appeal Application for Stay / Application by the Claimant for a Stay of Orders Made by Howie J on 27 October 2003 and Continuation of Restraints Pending Appeal

Legal Issues

  1. 1 ["Whether the claimant's appeal had sufficient substance to justify interlocutory relief pending appeal" "Whether the balance of convenience supported staying Howie J's orders of 27 October 2003 and continuing restraints imposed by orders and undertaking of 4 September 2001" 'Whether payment out of money held in Court or cessation of restraints could render a successful appeal nugatory' 'What conditions should qualify any stay or restraint pending appeal']

Ratio Decidendi

Because the appeal was not without some chance of success and there was a reasonable possibility that payment out of funds or removal of restraints could render a successful appeal nugatory, the balance of convenience favoured continuing the restraints and staying Howie J's orders pending appeal, but only for a limited period and subject to qualifications allowing consented transactions, reasonable short-term leasing, transactions after 42 days' notice, and payment out after 42 days' notice.

Court Disposition

Stay granted with conditions; time extended; costs of the application to be costs in the appeal.

Orders

  • ['Upon the claimant giving to the Court the usual undertaking as to damages, Orders 2-7 made by Howie J on 27 October 2003 stayed until 26 November 2004.' "This stay and the restraints imposed on the opponents by the orders and undertaking of 4 September 2001 shall not preclude transactions to which the claimant has...