Grace v Grace (No 3) [2012] NSWSC 1623

Grace v Grace (No 3) [2012] NSWSC 1623

The Court determined that while no hardship to the plaintiff was demonstrated by delay, enforcement against the second defendant might cause irreversible changes, such as the sale of property, that could not be remedied should the appeal succeed. Thus, the balance of convenience and prejudice weighed in favour of granting stays for certain orders pending appeal, except for the transfer of shares (which was to proceed with an undertaking from the plaintiff), and except for the taking of accounts (which was to proceed).

Jurisdiction
Australia
Judgment Date
13 December 2012
Procedural Posture
Interlocutory Application / Stay Application Pending Appeal
Outcome
Partially granted (some stays extended, some refused)
Legal Topics
['stay of Order Pending Appeal' 'balance of Convenience' 'enforcement of Judgment' 'appeal Processes']
['equity' 'practice and Procedure'] ['stay of Order Pending Appeal' 'balance of Convenience' 'enforcement of Judgment' 'appeal Processes']

Case Brief

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Procedural Posture

Interlocutory Application / Stay Application Pending Appeal

Legal Issues

  1. 1 ['Whether interim stays of orders should be further extended pending appeal' 'Principles applicable to applications for stay of orders pending an appeal' 'Balance of convenience and prejudice in granting a stay']

Ratio Decidendi

The Court determined that while no hardship to the plaintiff was demonstrated by delay, enforcement against the second defendant might cause irreversible changes, such as the sale of property, that could not be remedied should the appeal succeed. Thus, the balance of convenience and prejudice weighed in favour of granting stays for certain orders pending appeal, except for the transfer of shares (which was to proceed with an undertaking from the plaintiff), and except for the taking of accounts (which was to proceed).

Court Disposition

Partially granted (some stays extended, some refused)

Orders

  • ['Extension of undertakings and stays granted only as to certain orders (particularly the transfer of Birrell Street property and payment of sums found due on account), but refused as to transfer of 667 cumulative preference shares;' 'Taking of accounts may proceed;' 'Plaintiff to receive income from Birrell Street...