Karamihos v Bendigo and Adelaide Bank Ltd [2014] NSWCA 221

Karamihos v Bendigo and Adelaide Bank Ltd [2014] NSWCA 221

The application for a stay was dismissed because the applicants did not establish exceptional circumstances: the fact that the property was their family home was not enough. In any event, there was no substantial prospect that special leave would be granted because the proposed grounds were highly problematic and the dispute was essentially factual; delay created a real possibility of loss to the respondent; and the balance of convenience was against a stay.

Jurisdiction
Australia
Judgment Date
11 July 2014
Procedural Posture
Interlocutory Application / Application for Stay of Execution of a Writ of Possession Pending Determination of an Application for Special Leave to Appeal to the High Court of Australia
Outcome
Notice of motion dismissed; applicants ordered to pay the respondent's costs; interim stay no longer operative; respondent granted liberty to apply concerning dispensation in respect of execution of the writ of possession.
Legal Topics
['stay of Execution' 'writ of Possession' 'special Leave to Appeal' 'contracts Review Act 1980 (nsw)' 'national Credit Code' 'family Home as Security' 'balance of Convenience']
['civil Procedure' 'banking and Finance' 'consumer Credit' 'contracts'] ['stay of Execution' 'writ of Possession' 'special Leave to Appeal' 'contracts Review Act 1980 (nsw)' 'national Credit Code' 'family Home as Security' 'balance of Convenience']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Interlocutory Application / Application for Stay of Execution of a Writ of Possession Pending Determination of an Application for Special Leave to Appeal to the High Court of Australia

Legal Issues

  1. 1 ['Whether exceptional circumstances existed to justify a stay of execution of a writ of possession pending an application for special leave to appeal.' "Whether the fact that the subject property was the applicants' family home constituted exceptional circumstances." 'Whether there was a substantial prospect that special leave to appeal would be granted.' 'Whether a stay would cause loss to the respondent.' 'Where the balance of convenience lay.']

Ratio Decidendi

The application for a stay was dismissed because the applicants did not establish exceptional circumstances: the fact that the property was their family home was not enough. In any event, there was no substantial prospect that special leave would be granted because the proposed grounds were highly problematic and the dispute was essentially factual; delay created a real possibility of loss to the respondent; and the balance of convenience was against a stay.

Court Disposition

Notice of motion dismissed; applicants ordered to pay the respondent's costs; interim stay no longer operative; respondent granted liberty to apply concerning dispensation in respect of execution of the writ of possession.

Orders

  • ['Order that the notice of motion filed on 7 July 2014 be dismissed.' "Order that the applicants pay the respondent's costs of the notice of motion." 'Note that the stay ordered on 8 July 2014 pending delivery of judgment on the notice of motion is no longer operative.' 'Grant liberty to the respondent to apply to...