Timberwolf Planting Pty Ltd v Ferguson [2023] NSWSC 903

Timberwolf Planting Pty Ltd v Ferguson [2023] NSWSC 903

The stay was refused because, although the plaintiff had at least an arguable case, it failed to establish a real risk that it would suffer prejudice or damage if the costs order were not stayed. The evidence that the defendant did not own real property and had previously earned $100,000 per annum plus superannuation did not support a real, rather than speculative, risk that she would not repay the money if ordered to do so.

Jurisdiction
Australia
Judgment Date
20 July 2023
Procedural Posture
Civil Procedure Notice of Motion for Stay of Local Court Costs Orders / Application for Stay Pending Determination of Application for Leave to Appeal to the Supreme Court of New South Wales and Any Subsequent Appeal
Outcome
Stay refused; plaintiff ordered to pay the defendant's costs on the motion.
Legal Topics
['stay Pending Appeal' 'leave to Appeal From Local Court' 'lump Sum Costs Order' 'balance of Convenience' 'risk of Prejudice']
['civil Procedure' 'costs' 'appeals'] ['stay Pending Appeal' 'leave to Appeal From Local Court' 'lump Sum Costs Order' 'balance of Convenience' 'risk of Prejudice']

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Procedural Posture

Civil Procedure Notice of Motion for Stay of Local Court Costs Orders / Application for Stay Pending Determination of Application for Leave to Appeal to the Supreme Court of New South Wales and Any Subsequent Appeal

Legal Issues

  1. 1 ["Whether the Local Court costs orders should be stayed pending the plaintiff's application for leave to appeal and any subsequent appeal." 'Whether the plaintiff established a real risk that it would suffer prejudice or damage if a stay were not granted.' "Whether the plaintiff's proposed appeal had an arguable case."]

Ratio Decidendi

The stay was refused because, although the plaintiff had at least an arguable case, it failed to establish a real risk that it would suffer prejudice or damage if the costs order were not stayed. The evidence that the defendant did not own real property and had previously earned $100,000 per annum plus superannuation did not support a real, rather than speculative, risk that she would not repay the money if ordered to do so.

Court Disposition

Stay refused; plaintiff ordered to pay the defendant's costs on the motion.

Orders

  • ["The plaintiff's claim for a stay is refused." "The plaintiff pay the defendant's costs on the motion."]