Thomas v Stockman & Evans Solicitors [2012] NSWCA 386

Thomas v Stockman & Evans Solicitors [2012] NSWCA 386

The stay pending appeal was refused because the material before the Court did not satisfy the Court that the appeal had some prospect of success, and there had been no timely appeal against the order appointing trustees for sale. However, because enforcement of the writ of possession would have extremely serious consequences for the applicant, a temporary stay and pro bono referral were granted to enable her to obtain advice about review of the refusal of a stay.

Jurisdiction
Australia
Judgment Date
19 November 2012
Procedural Posture
Interlocutory Application / Notice of Motion in the Court of Appeal Seeking a Stay of Possession and Sale Pending Appeal From an Order for Possession
Outcome
Stay pending appeal refused, but operation of the order for possession stayed temporarily and the applicant referred for pro bono advice.
Legal Topics
['stay of Proceedings Pending Appeal' 'order for Possession' 'trustees for Sale' 'self Represented Litigant' 'referral to Pro Bono Panel']
['appeal and New Trial' 'practice and Procedure'] ['stay of Proceedings Pending Appeal' 'order for Possession' 'trustees for Sale' 'self Represented Litigant' 'referral to Pro Bono Panel']

Case Brief

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Procedural Posture

Interlocutory Application / Notice of Motion in the Court of Appeal Seeking a Stay of Possession and Sale Pending Appeal From an Order for Possession

Legal Issues

  1. 1 ['Whether a stay of the order for possession pending appeal should be granted.' "Whether the applicant's appeal had at least some prospects of success." 'Whether the applicant should be referred to a practitioner on the pro bono panel under UCPR 7.36 to obtain advice about review of the decision.']

Ratio Decidendi

The stay pending appeal was refused because the material before the Court did not satisfy the Court that the appeal had some prospect of success, and there had been no timely appeal against the order appointing trustees for sale. However, because enforcement of the writ of possession would have extremely serious consequences for the applicant, a temporary stay and pro bono referral were granted to enable her to obtain advice about review of the refusal of a stay.

Court Disposition

Stay pending appeal refused, but operation of the order for possession stayed temporarily and the applicant referred for pro bono advice.

Orders

  • ['I refuse to grant a stay of the order for possession pending appeal;' 'I stay the operation of the order for possession until Monday 18 February 2013;' 'I refer the applicant to the Registrar for referral to a practitioner on the pro bono panel to enable the applicant to receive advice about whether to seek review...