Investwell Pty Ltd (In Liquidation) v Daryl Leon Roberts [2011] NSWSC 1152

Investwell Pty Ltd (In Liquidation) v Daryl Leon Roberts [2011] NSWSC 1152

Although the authorities gave solid support to the earlier conclusion that no equitable mortgage arose without a request under cl 21, Mr Roberts' proposed appeal was not devoid of substance, including on the construction of cl 21 and the s 9 argument. The risk that he might be unable to prosecute the appeal if enforcement proceeded, together with the limited prejudice to the plaintiffs and the commercial need for speedy appellate determination, justified a stay, provided Mr Roberts undertook to prosecute the appeal diligently and with all due expedition.

Jurisdiction
Australia
Judgment Date
27 September 2011
Procedural Posture
Application for Stay Pending Appeal in Equity Division Corporations List / After Orders Made on 29 June 2011 and Costs Orders on 22 July 2011; Defendant Filed a Notice of Appeal and Sought a Stay Pending Determination of the Appeal
Outcome
Stay granted on condition that Mr Roberts undertake to the Court to prosecute his appeal diligently and with all due expedition.
Legal Topics
['unfair Preference' 'stay Pending Appeal' 'equitable Mortgage' 'secured and Unsecured Debts' 'specific Performance' 'indemnity']
['corporations' 'practice and Procedure' 'equity' 'insolvency'] ['unfair Preference' 'stay Pending Appeal' 'equitable Mortgage' 'secured and Unsecured Debts' 'specific Performance' 'indemnity']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Stay Pending Appeal in Equity Division Corporations List / After Orders Made on 29 June 2011 and Costs Orders on 22 July 2011; Defendant Filed a Notice of Appeal and Sought a Stay Pending Determination of the Appeal

Legal Issues

  1. 1 ["Whether Mr Roberts identified arguable grounds of appeal against the finding that the company's debt to him was unsecured for the purposes of s 588FA of the Corporations Act 2001 (Cth)." "Whether cl 21 of the agreement conferred an equitable mortgage over the company's land without any request by Mr Roberts." 'Whether refusal of a stay would deprive Mr Roberts of the means of prosecuting his appeal, including by exposing him to bankruptcy.' 'Whether a stay should be granted on condition that Mr Roberts prosecute his appeal diligently and with all due expedition.']

Ratio Decidendi

Although the authorities gave solid support to the earlier conclusion that no equitable mortgage arose without a request under cl 21, Mr Roberts' proposed appeal was not devoid of substance, including on the construction of cl 21 and the s 9 argument. The risk that he might be unable to prosecute the appeal if enforcement proceeded, together with the limited prejudice to the plaintiffs and the commercial need for speedy appellate determination, justified a stay, provided Mr Roberts undertook to prosecute the appeal diligently and with all due expedition.

Court Disposition

Stay granted on condition that Mr Roberts undertake to the Court to prosecute his appeal diligently and with all due expedition.

Orders

  • ['Upon condition that the defendant undertakes to the Court to prosecute his appeal diligently and with all due expedition, stay ordered until determination of the appeal or until further order.' 'Liberty to apply on 48 hours notice.']