Hawes v Dean [2013] NSWSC 2041

Hawes v Dean [2013] NSWSC 2041

The stay was refused because, although the fourth ground of appeal was well arguable, success on it would not reduce Mr Hawes' personal indebtedness and would instead increase it; the other grounds did not appear particularly strong; and the balance of convenience did not favour a stay because the Hawes Family Trust could be expected to fund payment if avoiding bankruptcy were genuinely desired, and otherwise any decision whether to pursue the appeal should be made by a trustee in bankruptcy as representative of creditors.

Jurisdiction
Australia
Judgment Date
18 December 2013
Procedural Posture
Application for Stay Pending Appeal / Interlocutory Application by Motion for Stay of Execution Pending Hearing of Appeal
Outcome
Application for stay dismissed with costs.
Legal Topics
['stay Pending Appeal' 'stay of Execution' 'arguable Grounds of Appeal' 'balance of Convenience' 'bankruptcy']
['practice and Procedure'] ['stay Pending Appeal' 'stay of Execution' 'arguable Grounds of Appeal' 'balance of Convenience' 'bankruptcy']

Case Brief

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Procedural Posture

Application for Stay Pending Appeal / Interlocutory Application by Motion for Stay of Execution Pending Hearing of Appeal

Legal Issues

  1. 1 ['Whether execution of the judgment for $32,801.99 payable to Trevor Laurence Dean should be stayed pending appeal.' 'Whether the applicants had arguable grounds of appeal sufficient to support a stay.' 'Whether the balance of convenience favoured granting a stay, including in light of asserted insolvency and the possibility of bankruptcy.']

Ratio Decidendi

The stay was refused because, although the fourth ground of appeal was well arguable, success on it would not reduce Mr Hawes' personal indebtedness and would instead increase it; the other grounds did not appear particularly strong; and the balance of convenience did not favour a stay because the Hawes Family Trust could be expected to fund payment if avoiding bankruptcy were genuinely desired, and otherwise any decision whether to pursue the appeal should be made by a trustee in bankruptcy as representative of creditors.

Court Disposition

Application for stay dismissed with costs.

Orders

  • ['By consent, the order requiring David Richard Hawes and Glenside Group Pty Ltd to pay Hawden Property Group Pty Ltd $534,187.23 was stayed.' 'The balance of the notice of motion be dismissed with costs.']