Mitzev v. Foxman [2007] NSWCA 134

Mitzev v. Foxman [2007] NSWCA 134

The unopposed application for an extension of time was justified by the evidence, but a stay of the money orders was refused because arguable appeal grounds alone were insufficient, there was no evidence that money paid over would be irrecoverable, and the respondent's undertaking not to further enforce beyond receiving the net proceeds of sale gave adequate protection to the appellant.

Jurisdiction
Australia
Judgment Date
04 June 2007
Procedural Posture
Appeal / Amended Notice of Motion for Extension of Time to File a Notice of Appeal and for Stay of Orders
Outcome
Order (3) in the amended notice of motion made; otherwise the notice of motion dismissed; appellant ordered to pay the respondent's costs of the notice of motion.
Legal Topics
['stay of Orders' 'extension of Time' 'costs of Motion']
['procedure' 'appellate Procedure'] ['stay of Orders' 'extension of Time' 'costs of Motion']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Appeal / Amended Notice of Motion for Extension of Time to File a Notice of Appeal and for Stay of Orders

Legal Issues

  1. 1 ['Whether time should be extended for filing a notice of appeal without appointment.' 'Whether orders made by Hamilton J should be stayed pending appeal.' 'Who should pay the costs of the notice of motion.']

Ratio Decidendi

The unopposed application for an extension of time was justified by the evidence, but a stay of the money orders was refused because arguable appeal grounds alone were insufficient, there was no evidence that money paid over would be irrecoverable, and the respondent's undertaking not to further enforce beyond receiving the net proceeds of sale gave adequate protection to the appellant.

Court Disposition

Order (3) in the amended notice of motion made; otherwise the notice of motion dismissed; appellant ordered to pay the respondent's costs of the notice of motion.

Orders

  • ['Order (3) in the amended notice of motion made.' "The respondent's undertaking to the court not to further enforce the orders made by Justice Hamilton beyond receiving the nett proceeds of sale of the Jindabyne property was noted." 'The notice of motion was otherwise dismissed.' "The appellant is to pay the...