Ryan v UPG 322 Pty Ltd (No 3) [2024] NSWSC 75

Ryan v UPG 322 Pty Ltd (No 3) [2024] NSWSC 75

Although the Second Defendant's appeal was arguable, he did not establish circumstances justifying a stay of orders 2 and 8. His failure to comply with existing Court orders and delay were unexplained, the evidence of an ability to complete was flimsy and unconvincing, the plaintiff was entitled to the fruits of judgment, costs had already been incurred in preparation for enforcement, and justice required refusal of the stay.

Jurisdiction
Australia
Judgment Date
06 February 2024
Procedural Posture
Civil Procedure Application for Stay of Execution in Equity Proceedings Concerning Specific Performance of a Contract for the Sale of Land / Notice of Motion by the Second Defendant Seeking a Stay of Orders 2 and 8 Pending Appeal
Outcome
The application for a stay was dismissed with costs.
Legal Topics
['stay of Execution Pending Appeal' 'specific Performance' 'contract for Sale of Land' 'guarantee and Indemnity' 'enforcement Orders' 'examination Under Civil Procedure Act 2005 (nsw) S 108']
['civil Procedure' 'equity' 'contract Law' 'property Law'] ['stay of Execution Pending Appeal' 'specific Performance' 'contract for Sale of Land' 'guarantee and Indemnity' 'enforcement Orders' 'examination Under Civil Procedure Act 2005 (nsw) S 108']

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Procedural Posture

Civil Procedure Application for Stay of Execution in Equity Proceedings Concerning Specific Performance of a Contract for the Sale of Land / Notice of Motion by the Second Defendant Seeking a Stay of Orders 2 and 8 Pending Appeal

Legal Issues

  1. 1 ['Whether orders 2 and 8 requiring specific performance and payment under the contract should be stayed so far as they concern the Second Defendant pending his appeal.' "Whether the Second Defendant had established circumstances warranting departure from the plaintiff's entitlement to the fruits of judgment." 'Whether the proposed appeal concerning construction of the guarantee and the application of Sunbird Plaza Pty Ltd v Maloney was arguable.' 'Whether asserted costs, inconvenience, and claimed ability to complete the contract by March 2024 justified a stay.']

Ratio Decidendi

Although the Second Defendant's appeal was arguable, he did not establish circumstances justifying a stay of orders 2 and 8. His failure to comply with existing Court orders and delay were unexplained, the evidence of an ability to complete was flimsy and unconvincing, the plaintiff was entitled to the fruits of judgment, costs had already been incurred in preparation for enforcement, and justice required refusal of the stay.

Court Disposition

The application for a stay was dismissed with costs.

Orders

  • ['The application for a stay is dismissed.' "The second defendant must pay the plaintiff's costs of the motion." 'The costs are to be assessable forthwith and payable immediately upon assessment.']