Daquino v Kira Holdings Pty Ltd [2010] NSWCA 158

Daquino v Kira Holdings Pty Ltd [2010] NSWCA 158

The stay was refused because the only prejudice relied upon was potential waste of costs within the court system, no irretrievable consequence outside the court system was alleged, and balancing that prospect against the successful parties' prima facie right to the fruits of Brereton J's judgment did not favour Mrs Daquino.

Jurisdiction
Australia
Judgment Date
05 July 2010
Procedural Posture
Notice of Motion for Limited Stay Pending Appeal / Court of Appeal Motion After Judgment in the Supreme Court Equity Division
Outcome
Notice of Motion dismissed with costs.
Legal Topics
['stay of Proceedings' 'costs Assessment' 'jurisdiction to Stay' 'overriding Purpose' 'indemnity Costs']
['civil Procedure' 'appellate Procedure'] ['stay of Proceedings' 'costs Assessment' 'jurisdiction to Stay' 'overriding Purpose' 'indemnity Costs']

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Procedural Posture

Notice of Motion for Limited Stay Pending Appeal / Court of Appeal Motion After Judgment in the Supreme Court Equity Division

Legal Issues

  1. 1 ['Whether the hearing of the Notice of Motion filed on 8 June 2010 in proceedings 10/51498 should be stayed pending the appeal.' "Whether the application for assessment of costs under Brereton J's orders should be stayed pending the appeal." 'Whether the Court of Appeal had power under s 135 of the Civil Procedure Act 2005, UCPR 51.44 or inherent power to grant the stay sought.' 'Whether potential wasted costs justified a stay where no irretrievable damage outside the court system was alleged.']

Ratio Decidendi

The stay was refused because the only prejudice relied upon was potential waste of costs within the court system, no irretrievable consequence outside the court system was alleged, and balancing that prospect against the successful parties' prima facie right to the fruits of Brereton J's judgment did not favour Mrs Daquino.

Court Disposition

Notice of Motion dismissed with costs.

Orders

  • ['The Notice of Motion is dismissed with costs.']