Carnemolla v Adelaide Bank Ltd [2013] NSWCA 166

Carnemolla v Adelaide Bank Ltd [2013] NSWCA 166

The applicants did not show any real prospect that special leave to appeal would be granted: their grounds did not identify an arguable legal error, concerned unsupported allegations about missing documents, challenged a discretionary refusal to receive further medical evidence with negligible prospects, or were wholly concerned with factual findings. A stay would increase the respondent bank's loss because the debt was increasing and the remaining security was likely to leave a significant shortfall. The balance of convenience favoured the respondent bank, so the notice of motion for a stay was dismissed.

Jurisdiction
Australia
Judgment Date
03 June 2013
Procedural Posture
Interlocutory Application / Notice of Motion Seeking a Stay of Proceedings Upon a Writ of Possession Pending Determination of an Application for Special Leave to Appeal to the High Court of Australia
Outcome
Notice of motion seeking a stay dismissed with costs.
Legal Topics
['stay Pending Application for Special Leave to Appeal' 'writ of Possession' 'mortgagee Possession' 'special Leave to Appeal']
['civil Procedure'] ['stay Pending Application for Special Leave to Appeal' 'writ of Possession' 'mortgagee Possession' 'special Leave to Appeal']

Case Brief

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Procedural Posture

Interlocutory Application / Notice of Motion Seeking a Stay of Proceedings Upon a Writ of Possession Pending Determination of an Application for Special Leave to Appeal to the High Court of Australia

Legal Issues

  1. 1 ['Whether there was a substantial prospect that special leave to appeal would be granted by the High Court of Australia' 'Whether the grant of a stay would cause loss to the respondent bank' 'Where the balance of convenience lay']

Ratio Decidendi

The applicants did not show any real prospect that special leave to appeal would be granted: their grounds did not identify an arguable legal error, concerned unsupported allegations about missing documents, challenged a discretionary refusal to receive further medical evidence with negligible prospects, or were wholly concerned with factual findings. A stay would increase the respondent bank's loss because the debt was increasing and the remaining security was likely to leave a significant shortfall. The balance of convenience favoured the respondent bank, so the notice of motion for a stay was dismissed.

Court Disposition

Notice of motion seeking a stay dismissed with costs.

Orders

  • ['The notice of motion filed on 22 May 2013 seeking a stay is dismissed with costs.' 'The exhibits tendered and admitted upon the hearing of the notice of motion may be returned after fourteen days.']