Tyndall v ACN 062 895 774 Pty Ltd [2007] NSWCA 102

Tyndall v ACN 062 895 774 Pty Ltd [2007] NSWCA 102

The notice of motion was dismissed because, although refusal of relief might mean the Killarney Heights property would not be preserved and the utility of any appeal might be frustrated, the claimant's prospects of obtaining special leave were slim, the case turned on very special facts, novel legal questions alone were insufficient to attract special leave, and the claimant's undertaking as to damages appeared unsupported by any financial ability to compensate the opponent for losses from continuing holding costs.

Jurisdiction
Australia
Judgment Date
23 April 2007
Procedural Posture
Application for Stay of Court of Appeal Orders and Injunction Pending Application for Special Leave to Appeal to the High Court / Notice of Motion After the Court of Appeal Allowed the Appeal and After the Claimant Filed an Application for Special Leave
Outcome
Notice of Motion dismissed with costs.
Legal Topics
['stay Pending Special Leave Application' 'injunction Pending Special Leave Application' 'prospects of Special Leave' 'equitable Lien' 'preservation of Subject Matter of Litigation']
['civil Procedure' 'equity' 'property Law'] ['stay Pending Special Leave Application' 'injunction Pending Special Leave Application' 'prospects of Special Leave' 'equitable Lien' 'preservation of Subject Matter of Litigation']

Case Brief

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Procedural Posture

Application for Stay of Court of Appeal Orders and Injunction Pending Application for Special Leave to Appeal to the High Court / Notice of Motion After the Court of Appeal Allowed the Appeal and After the Claimant Filed an Application for Special Leave

Legal Issues

  1. 1 ["Whether the Court should stay the orders of the Court of Appeal made on 27 March 2007 until the claimant's rights of appeal to the High Court were exhausted." 'Whether the Court should restrain the opponent from selling, disposing, encumbering or otherwise dealing with 4 Carlow Avenue, Killarney Heights pending exhaustion of appeal rights.' "Whether the claimant's prospects of obtaining special leave to appeal justified interlocutory relief despite the opponent's holding costs and the claimant's financial position."]

Ratio Decidendi

The notice of motion was dismissed because, although refusal of relief might mean the Killarney Heights property would not be preserved and the utility of any appeal might be frustrated, the claimant's prospects of obtaining special leave were slim, the case turned on very special facts, novel legal questions alone were insufficient to attract special leave, and the claimant's undertaking as to damages appeared unsupported by any financial ability to compensate the opponent for losses from continuing holding costs.

Court Disposition

Notice of Motion dismissed with costs.

Orders

  • ['The Notice of Motion filed on 23 April 2007 is dismissed with costs.']