Dokas v Gallagher [2024] NSWCA 223

Dokas v Gallagher [2024] NSWCA 223

The stay granted by the Appeal Panel had expired before any effective step was taken to extend it, the writ of possession had been lawfully issued and executed, and there was no judgment or order of this Court capable of being set aside or varied under r 36.15. The stay application therefore had to be dismissed.

Jurisdiction
Australia
Judgment Date
02 September 2024
Procedural Posture
Application for Leave to Appeal From a Decision of the Appeal Panel of Ncat; Notice of Motion Seeking a Stay / Notice of Motion for Stay Dismissed; Summons Seeking Leave to Appeal Listed for Hearing on Leave Only
Outcome
Applicants' notice of motion seeking a stay dismissed; applicants ordered to pay the costs of the notice of motion; summons seeking leave to appeal listed for hearing on leave only.
Legal Topics
['stay Pending Appeal' 'writ of Possession' 'leave to Appeal From Ncat' 'execution of Orders']
['civil Procedure' 'residential Tenancy'] ['stay Pending Appeal' 'writ of Possession' 'leave to Appeal From Ncat' 'execution of Orders']

Case Brief

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Procedural Posture

Application for Leave to Appeal From a Decision of the Appeal Panel of Ncat; Notice of Motion Seeking a Stay / Notice of Motion for Stay Dismissed; Summons Seeking Leave to Appeal Listed for Hearing on Leave Only

Legal Issues

  1. 1 ['Whether the Court should stay orders made by the Appeal Panel of NCAT after the writ of possession had already been issued and executed.' 'Whether there was any basis to make a mandatory order restoring the applicants to possession.' 'Whether Uniform Civil Procedure Rules 2005 (NSW), r 36.15 could be used to set aside or vary an order in circumstances where there was no judgment or order of this Court to set aside or vary.']

Ratio Decidendi

The stay granted by the Appeal Panel had expired before any effective step was taken to extend it, the writ of possession had been lawfully issued and executed, and there was no judgment or order of this Court capable of being set aside or varied under r 36.15. The stay application therefore had to be dismissed.

Court Disposition

Applicants' notice of motion seeking a stay dismissed; applicants ordered to pay the costs of the notice of motion; summons seeking leave to appeal listed for hearing on leave only.

Orders

  • ["Dismiss the applicants' notice of motion filed on 16 August 2024 seeking a stay of the orders made by NCAT." 'Direct that the summons seeking leave to appeal be heard on the issue of leave only and listed for hearing on Monday, 23 September 2024.' 'Direct that the respondent file and serve any evidence and written...