BRADBURY -v- AUSTRALIAN GUARANTEE CORPORATION LIMITED [1996] NSWCA 64

BRADBURY -v- AUSTRALIAN GUARANTEE CORPORATION LIMITED [1996] NSWCA 64

The stay of the orders for possession is granted on the basis that, although the prospects of some grounds of appeal succeeding are poor, there is an arguable technical point, and the balance of prejudice favors the appellant provided adequate protection is given to the respondent. The stay is therefore made conditional upon the appellant entering a supplementary deed to secure interest from the date when possession should have been delivered, and prosecuting the appeal diligently.

Parties
Appellant: Mrs Bradbury; First Respondent: Australian Guarantee Corporation Limited; Company Titled to the Units (not a Direct Party to the Motion): The Astor Pty Ltd
Jurisdiction
Australia
Judgment Date
03 October 1996
Procedural Posture
Appeal / Interlocutory Application for Stay Pending Appeal
Outcome
Stay of possession orders granted on terms, partial refusal of stay of costs, orders for costs of motion
Legal Topics
Stay of Proceedings, Possession Orders, Mortgage Enforcement, Security for Costs
Property Law Mortgage Law Civil Procedure Stay of Proceedings Possession Orders Mortgage Enforcement Security for Costs

Case Brief

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Parties

Mrs Bradbury

Appellant

Australian Guarantee Corporation Limited

First Respondent

The Astor Pty Ltd

Company Titled to the Units (not a Direct Party to the Motion)

Procedural Posture

Appeal / Interlocutory Application for Stay Pending Appeal

Legal Issues

  1. 1 Whether a stay of the possession and costs orders pending appeal should be granted
  2. 2 Whether prejudice to the parties justifies a stay
  3. 3 Whether the deeds and technical requirements for possession in company title units were satisfied

Ratio Decidendi

The stay of the orders for possession is granted on the basis that, although the prospects of some grounds of appeal succeeding are poor, there is an arguable technical point, and the balance of prejudice favors the appellant provided adequate protection is given to the respondent. The stay is therefore made conditional upon the appellant entering a supplementary deed to secure interest from the date when possession should have been delivered, and prosecuting the appeal diligently.

Court Disposition

Stay of possession orders granted on terms, partial refusal of stay of costs, orders for costs of motion

Orders

  • Stay of Dunford J's orders requiring the appellant to vacate and deliver keys is granted till determination of the appeal or further order, conditional on the appellant and first respondent entering a supplementary deed extending the secured sum to include interest at Supreme Court rates from 30 September 1996.
  • Appellant must prosecute the appeal with due diligence, seek expedition, with liberty to apply to vacate the stay if timetable not kept.