BATTLE v BUNDAGEN CO-OPERATIVE LTD [2010] NSWCA 251

BATTLE v BUNDAGEN CO-OPERATIVE LTD [2010] NSWCA 251

A stay of execution of the writ of possession should be granted pending determination of the appeal, as the applicant would suffer significant hardship if evicted, the appeal grounds are reasonably arguable, conditions can manage the risks to the respondent, and the balance of relevant factors supports relief.

Parties
Applicant: Christopher Battle; Respondent: Bundagen Co-operative Ltd
Jurisdiction
Australia
Judgment Date
28 September 2010
Procedural Posture
Civil Appeal / Interlocutory Application for Stay Pending Appeal
Outcome
Stay of execution granted; application allowed subject to conditions.
Legal Topics
Stay of Execution, Writ of Possession, Expulsion From Co Operative, Appeal Proceedings
Civil Procedure Stay of Execution Writ of Possession Expulsion From Co Operative Appeal Proceedings

Case Brief

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Parties

Christopher Battle

Applicant

Bundagen Co-operative Ltd

Respondent

Procedural Posture

Civil Appeal / Interlocutory Application for Stay Pending Appeal

Legal Issues

  1. 1 Should execution of a writ of possession be stayed pending the determination of appeal?
  2. 2 What conditions should attach to any stay granted?
  3. 3 Are there sufficiently arguable grounds of appeal to justify granting a stay?

Ratio Decidendi

A stay of execution of the writ of possession should be granted pending determination of the appeal, as the applicant would suffer significant hardship if evicted, the appeal grounds are reasonably arguable, conditions can manage the risks to the respondent, and the balance of relevant factors supports relief.

Court Disposition

Stay of execution granted; application allowed subject to conditions.

Orders

  • Execution of the writ of possession stayed until the determination of proceedings, subject to specified conditions.
  • The stay is conditional upon the applicant not assaulting, harassing, threatening, molesting, intimidating or otherwise interfering with members of the Co-operative, people living on the land of the Co-operative, or visitors on the land of the Co-operative; not approaching, contacting or communicating with those who...