Lee v Dow [2016] NSWSC 1404

Lee v Dow [2016] NSWSC 1404

The plaintiff's application for stay was dismissed because the alleged variation of the loan agreement was unsupported by consideration, vague, and uncertain, and therefore did not constitute a reasonably arguable defence; additionally, the balance of convenience did not favour the stay as the plaintiff had sufficient assets to satisfy the judgment and there was no risk of irremediable harm.

Jurisdiction
Australia
Judgment Date
05 October 2016
Procedural Posture
Motion for Stay of Execution / Interlocutory Application in Supreme Court Seeking Stay Pending Leave to Appeal From Local Court Decision Refusing to Set Aside Default Judgment
Outcome
Notice of Motion dismissed; plaintiff to pay defendant's costs of the Motion.
Legal Topics
['stay of Execution' 'default Judgment' 'leave to Appeal' 'setting Aside Judgment']
['civil Procedure'] ['stay of Execution' 'default Judgment' 'leave to Appeal' 'setting Aside Judgment']

Case Brief

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Procedural Posture

Motion for Stay of Execution / Interlocutory Application in Supreme Court Seeking Stay Pending Leave to Appeal From Local Court Decision Refusing to Set Aside Default Judgment

Legal Issues

  1. 1 ['Whether a stay of execution of the Local Court judgment should be granted pending a leave to appeal' 'Whether the appeal is reasonably arguable' 'Whether the balance of convenience favours the grant of a stay']

Ratio Decidendi

The plaintiff's application for stay was dismissed because the alleged variation of the loan agreement was unsupported by consideration, vague, and uncertain, and therefore did not constitute a reasonably arguable defence; additionally, the balance of convenience did not favour the stay as the plaintiff had sufficient assets to satisfy the judgment and there was no risk of irremediable harm.

Court Disposition

Notice of Motion dismissed; plaintiff to pay defendant's costs of the Motion.

Orders

  • ['Notice of Motion filed 5 August 2016 is dismissed.' "Plaintiff is to pay the defendant's costs of the Motion."]