Menzies v Paccar Financial Pty Ltd [2013] NSWCA 283

Menzies v Paccar Financial Pty Ltd [2013] NSWCA 283

In the unusual circumstances, including prior judicial recognition that legal assistance was warranted, substantial recent efforts by the unrepresented applicants to obtain such assistance, and the appearance of senior counsel as amicus advancing arguments that could not be dismissed out of hand, a short further extension of the existing stays was justified. Applying ss 56-60 of the Civil Procedure Act 2005 and the principles governing stays pending appeal, the money orders should provisionally be stayed because execution would not materially advantage Paccar and would cause undue prejudice to Mr and Mrs Menzies, while the possession orders should provisionally become enforceable after...

Jurisdiction
Australia
Judgment Date
30 August 2013
Procedural Posture
Application for Stay Pending Appeal and Application for Adjournment / Court of Appeal Interlocutory Ruling Pending Determination of Appeal
Outcome
Adjournment and extension of existing stay granted; provisional stay regime pending determination of appeal ordered.
Legal Topics
['stay Pending Appeal' 'adjournment to Obtain Legal Representation' 'unrepresented Appellants' 'possession Orders' 'money Orders' 'disclaimer of Onerous Property' 'vesting Orders' 'procedural Fairness']
['civil Procedure' 'corporations Law' 'bankruptcy' 'contracts'] ['stay Pending Appeal' 'adjournment to Obtain Legal Representation' 'unrepresented Appellants' 'possession Orders' 'money Orders' 'disclaimer of Onerous Property' 'vesting Orders' 'procedural Fairness']

Case Brief

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Procedural Posture

Application for Stay Pending Appeal and Application for Adjournment / Court of Appeal Interlocutory Ruling Pending Determination of Appeal

Legal Issues

  1. 1 ["Whether the hearing of the applicants' stay application should be adjourned to allow them a further opportunity to obtain legal representation." 'Whether the existing stays of the money orders and possession orders should be extended for a short period.' 'Whether the money orders should be stayed pending determination of the appeal.' "Whether the possession orders should be stayed pending determination of the appeal or be enforceable subject to Paccar's undertaking to store and keep the equipment." 'Whether there was a serious question on appeal based on procedural fairness, jurisdiction, and the effect of disclaimer under ss 568D and 568F of the Corporations Act 2001 (Cth).']

Ratio Decidendi

In the unusual circumstances, including prior judicial recognition that legal assistance was warranted, substantial recent efforts by the unrepresented applicants to obtain such assistance, and the appearance of senior counsel as amicus advancing arguments that could not be dismissed out of hand, a short further extension of the existing stays was justified. Applying ss 56-60 of the Civil Procedure Act 2005 and the principles governing stays pending appeal, the money orders should provisionally be stayed because execution would not materially advantage Paccar and would cause undue prejudice to Mr and Mrs Menzies, while the possession orders should provisionally become enforceable after...

Court Disposition

Adjournment and extension of existing stay granted; provisional stay regime pending determination of appeal ordered.

Orders

  • ['Extend the existing stays of the money orders and the possession orders (being orders 1, 2, 3 and 5 made on 13 June 2013) until 5pm on Monday 23 September 2013.' 'Subject to order 4, the money orders (being orders 3 and 5 made on 13 June 2013) be stayed until 28 days after the determination of the appeal, on terms...