Golden Oceans (NSW) Pty Ltd v Evewall Pty Ltd [2009] NSWCA 366

Golden Oceans (NSW) Pty Ltd v Evewall Pty Ltd [2009] NSWCA 366

Appeal dismissed with indemnity costs because the appeal was hopeless and the stay had been granted on a false basis, delaying disposal of the property.

Parties
First Appellant: Golden Oceans (NSW) Pty Limited; Second Appellant: Glenn Raymond Carroll; Third Appellant: Michelle Anne Carroll; Respondent: Evewall Pty Ltd
Jurisdiction
Australia
Judgment Date
06 November 2009
Procedural Posture
Appeal / Judgment on Costs Following Abandonment of Appeal
Outcome
Appeal dismissed with indemnity costs.
Legal Topics
Costs, Appeal Abandoned, Indemnity Costs, Mortgages and Charges, Equitable Charge
Procedure Mortgages Costs Appeal Abandoned Indemnity Costs Mortgages and Charges Equitable Charge

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Parties

Golden Oceans (NSW) Pty Limited

First Appellant

Glenn Raymond Carroll

Second Appellant

Michelle Anne Carroll

Third Appellant

Evewall Pty Ltd

Respondent

Procedural Posture

Appeal / Judgment on Costs Following Abandonment of Appeal

Legal Issues

  1. 1 Whether indemnity costs are appropriate when an appeal is abandoned
  2. 2 Whether undertaking given to court to grant second mortgage in stay of proceedings creates an equitable charge over property until second mortgage granted

Ratio Decidendi

Appeal dismissed with indemnity costs because the appeal was hopeless and the stay had been granted on a false basis, delaying disposal of the property.

Court Disposition

Appeal dismissed with indemnity costs.

Orders

  • The appeal is dismissed.
  • The appellants are to pay the respondent's costs on an indemnity basis.