Soo v Fisher and Ors trading as Fisher Cartwright Berriman [2009] NSWCA 393

Soo v Fisher and Ors trading as Fisher Cartwright Berriman [2009] NSWCA 393

A stay was granted because the proposed cross-appeal raised an arguable issue and, on balance, there was a sufficient risk that money paid over might be irrecoverable; payment into court or a joint solicitors' account was unnecessary given that the applicant was insured through Law Cover. Directions dispensing with a white book were appropriate so that the appeal and cross-appeal could be dealt with together.

Jurisdiction
Australia
Judgment Date
30 November 2009
Procedural Posture
Application for Stay Pending Appeal and Directions Concerning Application for Leave to Cross Appeal / Court of Appeal Ex Tempore Ruling on Notice of Motion Filed 19 November 2009
Outcome
Application granted in part; stay and procedural directions made; costs reserved as costs in the application for leave to cross-appeal and the cross-appeal if leave is granted or found unnecessary.
Legal Topics
['stay Pending Appeal' 'leave to Cross Appeal' 'directions' 'costs of Motion']
['civil Procedure' 'appellate Procedure'] ['stay Pending Appeal' 'leave to Cross Appeal' 'directions' 'costs of Motion']

Case Brief

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Procedural Posture

Application for Stay Pending Appeal and Directions Concerning Application for Leave to Cross Appeal / Court of Appeal Ex Tempore Ruling on Notice of Motion Filed 19 November 2009

Legal Issues

  1. 1 ['Whether execution upon orders made by Acting Justice Smart on 16 July 2009 and 29 July 2009 should be stayed pending further order of the Court.' 'Whether the proposed cross-appeal raised an arguable issue despite being directed to findings of fact.' 'Whether there was a risk that money paid over would not be recoverable.' 'Whether directions should be made dispensing with a white book and allowing the cross-summons for leave to cross-appeal to be heard concurrently with the appeal.']

Ratio Decidendi

A stay was granted because the proposed cross-appeal raised an arguable issue and, on balance, there was a sufficient risk that money paid over might be irrecoverable; payment into court or a joint solicitors' account was unnecessary given that the applicant was insured through Law Cover. Directions dispensing with a white book were appropriate so that the appeal and cross-appeal could be dealt with together.

Court Disposition

Application granted in part; stay and procedural directions made; costs reserved as costs in the application for leave to cross-appeal and the cross-appeal if leave is granted or found unnecessary.

Orders

  • ['Execution upon the orders of Acting Justice Smart of 16 July 2009 and 29 July 2009 be stayed until further order of the Court.' "The parties be relieved of compliance with the UCPR regarding the application for leave to cross-appeal and, in lieu thereof, the respondent include the applicants' cross-summons for...