Lawrence v Gunner [2015] NSWCA 322

Lawrence v Gunner [2015] NSWCA 322

A stay pending appeal was granted only to the extent that the judgment exceeded $15,000 and interest, as the applicants had arguable grounds with respect to the $300,000 profit finding, contingent on the Court admitting further evidence on appeal, but no arguable appeal point in relation to occupation of 134 Clontarf Street. The balance of convenience favoured partial stay due to risk of bankruptcy and impact on appeal.

Parties
First Applicant: Wayne Lawrence; Second Applicant: Valerie Lawrence; Respondent: Francis Beatrice Gunner
Jurisdiction
Australia
Judgment Date
15 October 2015
Procedural Posture
Application for Stay Pending Appeal / Interlocutory Application Pending Appeal
Outcome
Application granted in part; stay of enforcement of money judgment above $15,000 with interest, otherwise motion dismissed.
Legal Topics
Stay Pending Appeal, Money Judgment, Remittal to Tribunal, Breach of Fiduciary Duty, Admission of Further Evidence on Appeal
Civil Procedure Stay Pending Appeal Money Judgment Remittal to Tribunal Breach of Fiduciary Duty Admission of Further Evidence on Appeal

Case Brief

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Parties

Wayne Lawrence

First Applicant

Valerie Lawrence

Second Applicant

Francis Beatrice Gunner

Respondent

Procedural Posture

Application for Stay Pending Appeal / Interlocutory Application Pending Appeal

Legal Issues

  1. 1 Whether a stay should be granted pending appeal against a money judgment and order remitting possession proceedings to NCAT
  2. 2 Whether arguable grounds of appeal exist with respect to findings on occupation of 134 Clontarf Street and $315,000 profit
  3. 3 Whether further evidence on appeal should be received

Ratio Decidendi

A stay pending appeal was granted only to the extent that the judgment exceeded $15,000 and interest, as the applicants had arguable grounds with respect to the $300,000 profit finding, contingent on the Court admitting further evidence on appeal, but no arguable appeal point in relation to occupation of 134 Clontarf Street. The balance of convenience favoured partial stay due to risk of bankruptcy and impact on appeal.

Court Disposition

Application granted in part; stay of enforcement of money judgment above $15,000 with interest, otherwise motion dismissed.

Orders

  • Subject to order 2, stay the enforcement of orders 2 and 3 made by Stevenson J on 21 August 2015 until determination of the appeal or earlier further order.
  • The stay does not prevent enforcement of orders 2 and 3 up to a maximum amount of $15,000 together with interest thereon.