Boutros v Nationwide Capital Pty Ltd [2013] NSWCA 246

Boutros v Nationwide Capital Pty Ltd [2013] NSWCA 246

The stay was refused because the applicant did not demonstrate an arguable appeal. The orders for vacant possession and issue of a writ of possession were necessary ancillary orders to facilitate the existing judicial sale, which had not been appealed and was subject to the Court's supervision. The relief did not depend on Nationwide proving an independent legal right to possession or an equitable right to specific performance of a covenant to give possession. The balance of convenience also favoured Nationwide because a stay would delay the unchallenged judicial sale and likely increase Nationwide's loss while interest continued to accrue.

Jurisdiction
Australia
Judgment Date
01 August 2013
Procedural Posture
Application for Stay of Orders Pending Application for Leave to Appeal / Notice of Motion in the Court of Appeal Seeking a Stay of Orders Made by Mc Dougall J on 9 July 2013
Outcome
The applicant's notice of motion for a stay was dismissed with costs.
Legal Topics
['stay Pending Appeal' 'judicial Sale' 'vacant Possession' 'writ of Possession' 'equitable Mortgagee' 'liberty to Apply' 'finality of Orders']
['civil Procedure' 'real Property' 'equity' 'mortgage Law'] ['stay Pending Appeal' 'judicial Sale' 'vacant Possession' 'writ of Possession' 'equitable Mortgagee' 'liberty to Apply' 'finality of Orders']

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Procedural Posture

Application for Stay of Orders Pending Application for Leave to Appeal / Notice of Motion in the Court of Appeal Seeking a Stay of Orders Made by Mc Dougall J on 9 July 2013

Legal Issues

  1. 1 ['Whether the applicant demonstrated an arguable case for appeal from orders requiring vacant possession and permitting issue of a writ of possession.' 'Whether orders for vacant possession could be made as ancillary orders to facilitate an earlier order for judicial sale made subject to the supervision of the Court.' 'Whether the balance of convenience favoured a stay of the orders made by McDougall J.']

Ratio Decidendi

The stay was refused because the applicant did not demonstrate an arguable appeal. The orders for vacant possession and issue of a writ of possession were necessary ancillary orders to facilitate the existing judicial sale, which had not been appealed and was subject to the Court's supervision. The relief did not depend on Nationwide proving an independent legal right to possession or an equitable right to specific performance of a covenant to give possession. The balance of convenience also favoured Nationwide because a stay would delay the unchallenged judicial sale and likely increase Nationwide's loss while interest continued to accrue.

Court Disposition

The applicant's notice of motion for a stay was dismissed with costs.

Orders

  • ["The applicant's notice of motion filed 18 July 2013 be dismissed." "The applicant pay the first and second respondents' costs of the motion."]