KIMBERLEY HOMES PTY LIMITED v APM WOOD PRODUCTS PTY LIMITED [1989] NSWCA 125

KIMBERLEY HOMES PTY LIMITED v APM WOOD PRODUCTS PTY LIMITED [1989] NSWCA 125

The claimant failed to demonstrate an appropriate case for the exercise of discretion in favour of a stay of execution, as there was no sum for equitable set off and the appeal lacked real prospect of success.

Parties
Claimant: Kimberley Homes Pty Limited; Opponent: APM Wood Products Pty Limited
Jurisdiction
Australia
Judgment Date
23 March 1989
Procedural Posture
Motion for Stay of Execution / Court of Appeal Decision
Outcome
Motion dismissed with costs; stay of execution dissolved.
Legal Topics
Stay of Execution, Equitable Set Off, Appeal Process
Civil Procedure Stay of Execution Equitable Set Off Appeal Process

Case Brief

Summary, issues, holding and outcome

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Parties

Kimberley Homes Pty Limited

Claimant

APM Wood Products Pty Limited

Opponent

Procedural Posture

Motion for Stay of Execution / Court of Appeal Decision

Legal Issues

  1. 1 Whether a stay of execution should be granted pending appeal
  2. 2 Whether equitable set off applies to the judgment amount

Ratio Decidendi

The claimant failed to demonstrate an appropriate case for the exercise of discretion in favour of a stay of execution, as there was no sum for equitable set off and the appeal lacked real prospect of success.

Court Disposition

Motion dismissed with costs; stay of execution dissolved.

Orders

  • Motion dismissed with costs, including reserved costs
  • Current stay of execution dissolved