BATISTE & ORS v LENIN [2002] NSWCA 358

BATISTE & ORS v LENIN [2002] NSWCA 358

Although the Court accepted for present purposes that refusal of a stay might make the special leave application futile, the extraordinary jurisdiction to grant a stay was not justified because the proposed special leave grounds did not have substantial prospects, especially given the factual circumstances and the substantial rent, outgoings and interest owing; no proposal was made to pay the outstanding debt as a condition of a stay; and a stay would cause substantial loss to the opponent by further delaying possession and payment.

Jurisdiction
Australia
Judgment Date
28 October 2002
Procedural Posture
Application for Stay / Court of Appeal Application by Notice of Motion to Stay the Court of Appeal Judgment, or Alternatively Execution of a Writ of Possession, Pending an Application for Special Leave to Appeal to the High Court
Outcome
Application dismissed with costs.
Legal Topics
['stay Pending Special Leave to Appeal' 'relief Against Forfeiture' 'lease Forfeiture' 'writ of Possession' 'conveyancing Act 1919 S129']
['civil Procedure' 'property Law' 'leases'] ['stay Pending Special Leave to Appeal' 'relief Against Forfeiture' 'lease Forfeiture' 'writ of Possession' 'conveyancing Act 1919 S129']

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Procedural Posture

Application for Stay / Court of Appeal Application by Notice of Motion to Stay the Court of Appeal Judgment, or Alternatively Execution of a Writ of Possession, Pending an Application for Special Leave to Appeal to the High Court

Legal Issues

  1. 1 ["Whether the Court of Appeal judgment should be stayed pending hearing and determination of the claimants' application for special leave to appeal to the High Court." 'Whether execution of the writ of possession granted to the opponent should be stayed.' 'Whether exceptional circumstances justified a stay to preserve the subject matter of the litigation.' 'Whether there was a substantial prospect that special leave to appeal would be granted.' 'Whether the grant of a stay would cause loss to the opponent and where the balance of convenience lay.']

Ratio Decidendi

Although the Court accepted for present purposes that refusal of a stay might make the special leave application futile, the extraordinary jurisdiction to grant a stay was not justified because the proposed special leave grounds did not have substantial prospects, especially given the factual circumstances and the substantial rent, outgoings and interest owing; no proposal was made to pay the outstanding debt as a condition of a stay; and a stay would cause substantial loss to the opponent by further delaying possession and payment.

Court Disposition

Application dismissed with costs.

Orders

  • ['The application is dismissed with costs.']