FAIREY v FAIREY (Eq No 1177/96); FAIREY v FAIREY (CA 40780/98) [1998] NSWCA 279

FAIREY v FAIREY (Eq No 1177/96); FAIREY v FAIREY (CA 40780/98) [1998] NSWCA 279

Where a judgment is under appeal, a stay of execution may be granted not solely according to the prospects of the appeal but to better effect justice, in this case by substituting an orderly sale and controlled fund to protect the interests of both parties instead of a forced sale, with conditions ensuring the fund is created in a timely manner and appropriate restraints are maintained.

Parties
Plaintiff: Fairey; Defendant: Fairey
Jurisdiction
Australia
Judgment Date
09 December 1998
Procedural Posture
Appeal and Interlocutory Motion / Interlocutory; Application for Stay of Execution and Discharge of Prior Order Pending Appeal
Outcome
orders made by consent and direction for creation of fund following judicial indication, subject to undertakings
Legal Topics
Stay of Execution, Mareva Injunction, Creation of Fund Pending Appeal
Equity Civil Procedure Stay of Execution Mareva Injunction Creation of Fund Pending Appeal

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Parties

Fairey

Plaintiff

Fairey

Defendant

Procedural Posture

Appeal and Interlocutory Motion / Interlocutory; Application for Stay of Execution and Discharge of Prior Order Pending Appeal

Legal Issues

  1. 1 whether the order restraining dealing with lot 1 should be discharged
  2. 2 whether a stay of execution of judgment for damages and costs should be granted pending appeal
  3. 3 how a fund to secure the judgment should be created and protected

Ratio Decidendi

Where a judgment is under appeal, a stay of execution may be granted not solely according to the prospects of the appeal but to better effect justice, in this case by substituting an orderly sale and controlled fund to protect the interests of both parties instead of a forced sale, with conditions ensuring the fund is created in a timely manner and appropriate restraints are maintained.

Court Disposition

orders made by consent and direction for creation of fund following judicial indication, subject to undertakings

Orders

  • Orders in paragraphs 1, 2, 5, and 6 of the short minutes of order initialled and dated today's date are made.
  • Direction in paragraph 3 of those short minutes given.