Jowett v Kelly [2008] NSWSC 1009

Jowett v Kelly [2008] NSWSC 1009

The stay should be granted because it is seriously arguable that the incompetence of the defendants' solicitor deprived them of proper representation and created prospects of appellate success; the balance of convenience favours granting a stay to prevent bankrupting the defendants and deny them a viable appeal.

Parties
Plaintiff: Kenneth Rowland Jowett; First Defendant: Leanne Emeline Kelly; Second Defendant: Terrence John McLennan
Jurisdiction
Australia
Judgment Date
27 August 2008
Procedural Posture
Family Provision Application / Application for Stay Pending Appeal
Outcome
Stay granted pending appeal.
Legal Topics
Stay of Proceedings, Family Provision, Incompetence of Legal Representation, Balance of Convenience
Equity Succession Stay of Proceedings Family Provision Incompetence of Legal Representation Balance of Convenience

Case Brief

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Parties

Kenneth Rowland Jowett

Plaintiff

Leanne Emeline Kelly

First Defendant

Terrence John McLennan

Second Defendant

Procedural Posture

Family Provision Application / Application for Stay Pending Appeal

Legal Issues

  1. 1 Whether a stay should be granted pending appeal of orders under the Family Provision Act 1982
  2. 2 Whether incompetence of legal representation is an available ground of appeal
  3. 3 Balance of convenience and possible prejudice to parties

Ratio Decidendi

The stay should be granted because it is seriously arguable that the incompetence of the defendants' solicitor deprived them of proper representation and created prospects of appellate success; the balance of convenience favours granting a stay to prevent bankrupting the defendants and deny them a viable appeal.

Court Disposition

Stay granted pending appeal.

Orders

  • Upon Brydens Law Office giving undertaking as to damages, operation of orders 1, 2 and 3 made on 29 May 2008 is stayed until appeal or further order.
  • Costs of the motion will be the plaintiff's costs in the appeal.