Caird Seven Pty Ltd v Mina Attia and Shopsmart Pharmacy Franchising Pty Ltd (No 2) [2016] NSWSC 1217

Caird Seven Pty Ltd v Mina Attia and Shopsmart Pharmacy Franchising Pty Ltd (No 2) [2016] NSWSC 1217

The notice of motion was dismissed because the applicants did not establish any sufficient change of circumstances, including in their financial position, to justify varying the conditions of the stay; the Rescission Deed was not conditional on obtaining finance; the evidence did not warrant doubting that the pharmacy business would continue as a going concern in the immediate future; and the leave application would not be rendered nugatory.

Jurisdiction
Australia
Judgment Date
22 August 2016
Procedural Posture
Notice of Motion to Vary Conditions of a Stay / Application Filed and Heard Returnable Instanter After a Stay Had Been Granted Pending Final Disposition of an Application for Leave to Appeal
Outcome
Notice of Motion dismissed with costs.
Legal Topics
['stay of Orders' 'variation of Stay Conditions' 'specific Performance' 'change of Circumstances' 'financial Capacity to Comply With Stay Conditions']
['practice and Procedure' 'equity Commercial List'] ['stay of Orders' 'variation of Stay Conditions' 'specific Performance' 'change of Circumstances' 'financial Capacity to Comply With Stay Conditions']

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Procedural Posture

Notice of Motion to Vary Conditions of a Stay / Application Filed and Heard Returnable Instanter After a Stay Had Been Granted Pending Final Disposition of an Application for Leave to Appeal

Legal Issues

  1. 1 ['Whether the stay granted on 5 August 2016 should be varied so that it was not conditional.' 'Whether Orders 2, 3 and 4 made on 5 August 2016 should be vacated.' 'Whether the applicants had shown a sufficient change of circumstances, including financial circumstances, to justify varying the conditions of the stay.' 'Whether the existing conditions would render the application for leave to appeal nugatory.']

Ratio Decidendi

The notice of motion was dismissed because the applicants did not establish any sufficient change of circumstances, including in their financial position, to justify varying the conditions of the stay; the Rescission Deed was not conditional on obtaining finance; the evidence did not warrant doubting that the pharmacy business would continue as a going concern in the immediate future; and the leave application would not be rendered nugatory.

Court Disposition

Notice of Motion dismissed with costs.

Orders

  • ['The notice of motion filed by leave on 22 August 2016 is dismissed with costs.']