Jandsen Pty Ltd v Welsh [2009] NSWCA 33

Jandsen Pty Ltd v Welsh [2009] NSWCA 33

There was some risk that if the applicant succeeded in the ultimate appeal, recovery of the judgment would be problematic, and considering the fine balance of the special leave prospects and respondent’s limited excess assets, it was appropriate to grant a stay, conditional on the applicant’s undertaking to prosecute the application with due diligence.

Parties
Applicant: Jandson Pty Ltd; Respondent: Judith Carol Welsh
Jurisdiction
Australia
Judgment Date
09 February 2009
Procedural Posture
Application for Stay Pending Special Leave to Appeal / Ex Tempore Judgment on Notice of Motion for Stay
Outcome
Application for stay granted on condition of undertaking to prosecute with due diligence.
Legal Topics
Application for Stay Pending Application for Special Leave
Procedure Application for Stay Pending Application for Special Leave

Case Brief

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Parties

Jandson Pty Ltd

Applicant

Judith Carol Welsh

Respondent

Procedural Posture

Application for Stay Pending Special Leave to Appeal / Ex Tempore Judgment on Notice of Motion for Stay

Legal Issues

  1. 1 Whether a stay of the judgment should be granted pending the application for special leave to appeal to the High Court

Ratio Decidendi

There was some risk that if the applicant succeeded in the ultimate appeal, recovery of the judgment would be problematic, and considering the fine balance of the special leave prospects and respondent’s limited excess assets, it was appropriate to grant a stay, conditional on the applicant’s undertaking to prosecute the application with due diligence.

Court Disposition

Application for stay granted on condition of undertaking to prosecute with due diligence.

Orders

  • Upon the applicant undertaking to prosecute the application for special leave to appeal with due diligence, the judgment of the Court of Appeal dated 3 December 2008 is stayed pending disposition of the application for special leave to appeal and, if that application be successful, pending disposition by the High...
  • Costs of the notice of motion be costs in the cause.