Angus Carnegie Gordon in his capacity as liquidator of Lyon Form Pty Ltd (in liq) & Anor v Leon Plant Hire Pty Ltd & Ors [2015] NSWSC 2005

Angus Carnegie Gordon in his capacity as liquidator of Lyon Form Pty Ltd (in liq) & Anor v Leon Plant Hire Pty Ltd & Ors [2015] NSWSC 2005

The stay was refused because no appeal had been filed in time, an extension of time would be required, and the draft notice of appeal and submissions did not identify a sufficiently arguable factual or legal error with a logical prospect of leading to a different result. Although there was a risk that payment to the company in liquidation or sale of property might not be reversible, that risk was insufficient without a demonstrated serious issue on appeal or basis supporting an extension of time.

Jurisdiction
Australia
Judgment Date
27 August 2015
Procedural Posture
Procedure Application for Stay of Judgment and Final Orders Pending Proposed Appeal / Notice of Motion Filed After Judgment and Final Orders; No Appeal Had Yet Been Filed and an Extension of Time Would Be Required
Outcome
Application for stay of judgment dismissed with costs.
Legal Topics
['stay Pending Appeal' 'extension of Time to Appeal' 'equitable Charge' 'company in Liquidation']
['civil Procedure' 'corporations'] ['stay Pending Appeal' 'extension of Time to Appeal' 'equitable Charge' 'company in Liquidation']

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Procedural Posture

Procedure Application for Stay of Judgment and Final Orders Pending Proposed Appeal / Notice of Motion Filed After Judgment and Final Orders; No Appeal Had Yet Been Filed and an Extension of Time Would Be Required

Legal Issues

  1. 1 ['Whether the judgment and final orders should be stayed pending determination of proposed Court of Appeal proceedings.' 'Whether the defendants demonstrated a sufficient arguable case or serious question on appeal to justify a stay.' 'Whether the risk that sale of property or payment to a company in liquidation could not be reversed justified a stay despite no appeal having been filed in time.']

Ratio Decidendi

The stay was refused because no appeal had been filed in time, an extension of time would be required, and the draft notice of appeal and submissions did not identify a sufficiently arguable factual or legal error with a logical prospect of leading to a different result. Although there was a risk that payment to the company in liquidation or sale of property might not be reversible, that risk was insufficient without a demonstrated serious issue on appeal or basis supporting an extension of time.

Court Disposition

Application for stay of judgment dismissed with costs.

Orders

  • ['The interlocutory application filed by the Defendants dated 4 June 2015 should be dismissed with costs.']