Penson v Titan National Pty Limited [2015] NSWCA 108

Penson v Titan National Pty Limited [2015] NSWCA 108

The application for an ex parte stay was refused because the notice of motion had not been served in accordance with UCPR r 18.4, there was no evidence of an imminent risk that writs of execution would be executed so as to justify ex parte relief, and the applicant had not made out a prima facie case for an extension of time and leave to appeal. The Court also identified an unresolved potential jurisdictional problem under s 127 of the District Court Act 1973 (NSW) concerning orders related to the appeal from the Costs Review Panel.

Jurisdiction
Australia
Judgment Date
20 April 2015
Procedural Posture
Application for Leave to Appeal From District Court Orders; Notice of Motion for Stay / Application for Ex Parte Stay Pending Leave to Appeal
Outcome
Application for ex parte stay refused.
Legal Topics
['ex Parte Stay' 'leave to Appeal' 'extension of Time' 'service of Notice of Motion' 'district Court Appeal Jurisdiction' 'costs Review Panel Appeal']
['civil Procedure' 'appeals' 'costs'] ['ex Parte Stay' 'leave to Appeal' 'extension of Time' 'service of Notice of Motion' 'district Court Appeal Jurisdiction' 'costs Review Panel Appeal']

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Procedural Posture

Application for Leave to Appeal From District Court Orders; Notice of Motion for Stay / Application for Ex Parte Stay Pending Leave to Appeal

Legal Issues

  1. 1 ['Whether a stay should be granted on an ex parte basis where the notice of motion was not served at least three days before the hearing.' 'Whether the applicant had shown a prima facie case that an extension of time and leave to appeal would be granted.' 'Whether the balance of convenience favoured a stay, including in light of writs of execution against the applicant.' 'Whether the Court of Appeal had jurisdiction under s 127 of the District Court Act 1973 (NSW) in relation to orders connected with a statutory appeal from a Costs Review Panel.']

Ratio Decidendi

The application for an ex parte stay was refused because the notice of motion had not been served in accordance with UCPR r 18.4, there was no evidence of an imminent risk that writs of execution would be executed so as to justify ex parte relief, and the applicant had not made out a prima facie case for an extension of time and leave to appeal. The Court also identified an unresolved potential jurisdictional problem under s 127 of the District Court Act 1973 (NSW) concerning orders related to the appeal from the Costs Review Panel.

Court Disposition

Application for ex parte stay refused.

Orders

  • ['Application for ex parte stay refused.']