Shields v Monhem (No 3) [2014] NSWLEC 124

Shields v Monhem (No 3) [2014] NSWLEC 124

Because the respondents' challenge to the 18 July 2014 decision was at least arguable, and the balance of convenience justified preserving the position in relation to the remediation works while allowing the tree-removal orders to proceed, the execution of Orders (5) to (10) and the proceedings generally were stayed pending the Court of Appeal's decision, with the applicant's undertaking noted and costs to be costs in the cause.

Jurisdiction
Australia
Judgment Date
19 August 2014
Procedural Posture
Class 2 / Application for a Stay of Orders and Proceedings Pending the Decision of the Court of Appeal on the Appeal Sought to Be Brought by the Respondents
Outcome
Stay granted in respect of Orders (5) to (10) and the proceedings generally pending the Court of Appeal's decision; costs of the stay motion made costs in the cause.
Legal Topics
['stay Pending Appeal' 'arguable Appeal' 'balance of Convenience' 'costs in the Cause']
['practice and Procedure' 'trees Disputes Between Neighbours'] ['stay Pending Appeal' 'arguable Appeal' 'balance of Convenience' 'costs in the Cause']

Case Brief

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Procedural Posture

Class 2 / Application for a Stay of Orders and Proceedings Pending the Decision of the Court of Appeal on the Appeal Sought to Be Brought by the Respondents

Legal Issues

  1. 1 ["Whether orders made on 18 July 2014 and the proceedings should be stayed pending the Court of Appeal's decision on the appeal sought by the respondents." "Whether the respondents' proposed appeal was arguable or hopeless." "How the balance of convenience should be assessed between ongoing damage to the applicant's property and the respondents' claimed greater impecuniosity."]

Ratio Decidendi

Because the respondents' challenge to the 18 July 2014 decision was at least arguable, and the balance of convenience justified preserving the position in relation to the remediation works while allowing the tree-removal orders to proceed, the execution of Orders (5) to (10) and the proceedings generally were stayed pending the Court of Appeal's decision, with the applicant's undertaking noted and costs to be costs in the cause.

Court Disposition

Stay granted in respect of Orders (5) to (10) and the proceedings generally pending the Court of Appeal's decision; costs of the stay motion made costs in the cause.

Orders

  • ['The execution of Orders (5) to (10), made on 18 July 2014, and these proceedings 2014/20160, generally, are stayed, pending the decision of the Court of Appeal on the appeal sought to be brought by the respondent Monhems.' 'I note and accept the undertaking given to the Court, by the applicant Shields in paragraph...