Australian Executor Trustees Ltd v Pachkovski [2011] NSWCA 23

Australian Executor Trustees Ltd v Pachkovski [2011] NSWCA 23

The application for leave to appeal should not be summarily dismissed because, despite being 14 days out of time, there was some explanation for the delay and the documentary discrepancy between the residential mortgage loan application referring to fixed interest and the loan agreement describing a Cashflow Manager Loan meant the proposed appeal was not so clearly hopeless as to warrant summary termination. However, the stay of the writ of possession should be lifted because the respondents admitted inability to pay, had made no payments for a long period, remained liable at least for principal, and the applicant showed prejudice because the property's valuation was substantially below...

Jurisdiction
Australia
Judgment Date
23 February 2011
Procedural Posture
Application for Summary Dismissal of Summons Seeking Leave to Appeal, Lifting of Stay of Writ of Possession, and Setting Aside of Subpoena / Court of Appeal Motion Before a Single Judge After Judgment in the Common Law Division Granting Possession and Money Judgment
Outcome
The applicant's motion filed on 20 January 2011 was allowed in part by lifting the stay and setting aside the subpoena, but the summons seeking leave to appeal was not dismissed; the respondents' motion filed on 24 November 2010 was dismissed.
Legal Topics
['summary Dismissal Under Uniform Civil Procedure Rules 2005 R 13.4' 'leave to Appeal and Extension of Time' 'powers of a Single Judge of Appeal' 'stay of Writ of Possession Pending Appeal' 'subpoena Issued by Litigants in Person' 'mortgage Possession Proceedings']
['civil Procedure' 'appellate Procedure' 'mortgages and Securities'] ['summary Dismissal Under Uniform Civil Procedure Rules 2005 R 13.4' 'leave to Appeal and Extension of Time' 'powers of a Single Judge of Appeal' 'stay of Writ of Possession Pending Appeal' 'subpoena Issued by Litigants in Person' 'mortgage Possession Proceedings']

Case Brief

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Procedural Posture

Application for Summary Dismissal of Summons Seeking Leave to Appeal, Lifting of Stay of Writ of Possession, and Setting Aside of Subpoena / Court of Appeal Motion Before a Single Judge After Judgment in the Common Law Division Granting Possession and Money Judgment

Legal Issues

  1. 1 ['Whether the summons seeking leave to appeal should be dismissed because it was filed out of time or because the proposed appeal was unarguable.' 'Whether the stay of the writ of possession granted by Young JA should be lifted pending the application for leave to appeal.' 'Whether the subpoena filed on 6 January 2011 should be set aside.']

Ratio Decidendi

The application for leave to appeal should not be summarily dismissed because, despite being 14 days out of time, there was some explanation for the delay and the documentary discrepancy between the residential mortgage loan application referring to fixed interest and the loan agreement describing a Cashflow Manager Loan meant the proposed appeal was not so clearly hopeless as to warrant summary termination. However, the stay of the writ of possession should be lifted because the respondents admitted inability to pay, had made no payments for a long period, remained liable at least for principal, and the applicant showed prejudice because the property's valuation was substantially below...

Court Disposition

The applicant's motion filed on 20 January 2011 was allowed in part by lifting the stay and setting aside the subpoena, but the summons seeking leave to appeal was not dismissed; the respondents' motion filed on 24 November 2010 was dismissed.

Orders

  • ['Lift the stay of the writ of possession granted by Young JA on 29 November 2010.' 'Set aside the subpoena filed on 6 January 2011.' 'Each party to bear its and their costs of the motion filed on 20 January 2011.' 'Dismiss the motion filed on 24 November 2010.' 'Applicants to pay the costs of the motion.']