Vaughan v Dawson [2008] NSWCA 169

Vaughan v Dawson [2008] NSWCA 169

The stay was refused because the applicant did not demonstrate an arguable ground of appeal or serious question to be tried. The proposed appeal challenged credit-based factual findings, no legal error was alleged, the notice of appeal largely failed to comply with UCPR 51.18(2), and counsel could not identify incontrovertibly established facts, uncontested testimony, misuse of trial advantage, glaring improbability, or compelling inferences sufficient to satisfy the Fox v Percy and Devries principles.

Jurisdiction
Australia
Judgment Date
14 July 2008
Procedural Posture
Application for Stay of Judgment Pending Appeal / Court of Appeal Ex Tempore Judgment
Outcome
Application dismissed with costs.
Legal Topics
['stay Pending Appeal' 'serious Question to Be Tried' 'balance of Convenience' 'credit Based Factual Findings' 'bankruptcy Notice']
['practice and Procedure' 'civil Procedure' 'appeals'] ['stay Pending Appeal' 'serious Question to Be Tried' 'balance of Convenience' 'credit Based Factual Findings' 'bankruptcy Notice']

Case Brief

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Procedural Posture

Application for Stay of Judgment Pending Appeal / Court of Appeal Ex Tempore Judgment

Legal Issues

  1. 1 ["Whether a stay of White J's judgment pending appeal should be granted." 'Whether the applicant demonstrated a serious question to be tried or arguable grounds of appeal.' 'Whether the balance of convenience favoured a stay, including risk of non-repayment by the respondents and whether refusal of a stay would stifle the appeal.' 'Whether alleged incompetence of the appeal could be relied on at the stay hearing without prior notice.']

Ratio Decidendi

The stay was refused because the applicant did not demonstrate an arguable ground of appeal or serious question to be tried. The proposed appeal challenged credit-based factual findings, no legal error was alleged, the notice of appeal largely failed to comply with UCPR 51.18(2), and counsel could not identify incontrovertibly established facts, uncontested testimony, misuse of trial advantage, glaring improbability, or compelling inferences sufficient to satisfy the Fox v Percy and Devries principles.

Court Disposition

Application dismissed with costs.

Orders

  • ['Application dismissed.' 'The dismissal will be with costs.']