Boddy & Collins Pty Ltd & Ors v Nicholas Desmond & Anor [1981] FCA 275

Boddy & Collins Pty Ltd & Ors v Nicholas Desmond & Anor [1981] FCA 275

A stay should be granted to allow the appellant to proceed in the Federal Court under s.47 of the Trade Practices Act, as the injunction, if left in operation, would preclude the appellant from trading and obtaining relief under the Act. The stay imposes an undertaking on the appellant to take active steps to...

Source-derived case information.

Parties
Appellant: Boddy & Collins Pty. Limited; Respondent: Nicholas Desmond; Respondent: Marion Gertrude Desmond
Jurisdiction
Australia
Judgment Date
07 July 1981
Procedural Posture
Application for Stay Pending Appeal / Interlocutory Application
Outcome
Stay of part of injunction granted
Legal Topics
Stay of Injunction, S.47 Trade Practices Act, Injunctions, Appeal Procedure
Trade Practices Stay of Injunction S.47 Trade Practices Act Injunctions Appeal Procedure

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Parties

Boddy & Collins Pty. Limited

Appellant

Nicholas Desmond

Respondent

Marion Gertrude Desmond

Respondent

Procedural Posture

Application for Stay Pending Appeal / Interlocutory Application

Legal Issues

  1. 1 Whether a stay of the injunction should be granted pending the appeal
  2. 2 Effect of s.47 of the Trade Practices Act on contractual provisions
  3. 3 Practical and legal consequences of refusing the stay

Ratio Decidendi

A stay should be granted to allow the appellant to proceed in the Federal Court under s.47 of the Trade Practices Act, as the injunction, if left in operation, would preclude the appellant from trading and obtaining relief under the Act. The stay imposes an undertaking on the appellant to take active steps to expedite the appeal.

Court Disposition

Stay of part of injunction granted

Orders

  • That the part of the order appealed from, restraining the defendant from erecting on the said land bowsers other than those the property of Ampol Petroleum Limited, be stayed until further order, subject to the appellant taking active steps to expedite the hearing of the appeal.