Archer & Anor v Archer [1999] NSWCA 286

Archer & Anor v Archer [1999] NSWCA 286

Although Mason P considered the appeal borderline and not strong, it was not unarguable in light of Bridgewater v Leigh. Because disposal of the controlled moneys might put it beyond the power of the Court to grant appropriate relief and might render the appeal nugatory, the status quo should be maintained pending appeal. To avoid unnecessary prejudice to Trevor Robert Archer, the injunction was conditioned by an undertaking as to damages and by permitting withdrawals for specified legal costs up to $109,000, with the appeal expedited.

Jurisdiction
Australia
Judgment Date
20 July 1999
Procedural Posture
Application for Interlocutory Injunction or Stay Pending Appeal / Court of Appeal Application to Preserve Controlled Moneys Pending Appeal From Windeyer J's Dismissal of Mrs Archer's Claim
Outcome
Injunction granted; appeal expedited; costs of the motion to be costs in the appeal.
Legal Topics
['undue Influence' 'unconscionable Conduct' 'interlocutory Injunction Pending Appeal' 'preservation of Subject Matter of Appeal' 'balance of Convenience' 'equitable Compensation']
['equity' 'civil Procedure' 'appellate Procedure'] ['undue Influence' 'unconscionable Conduct' 'interlocutory Injunction Pending Appeal' 'preservation of Subject Matter of Appeal' 'balance of Convenience' 'equitable Compensation']

Case Brief

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Procedural Posture

Application for Interlocutory Injunction or Stay Pending Appeal / Court of Appeal Application to Preserve Controlled Moneys Pending Appeal From Windeyer J's Dismissal of Mrs Archer's Claim

Legal Issues

  1. 1 ['Whether the controlled moneys should remain preserved pending determination of the appeal.' "Whether Mrs Archer's appeal was arguable in light of Bridgewater v Leigh (1998) 158 ALR 66 despite adverse factual and credibility findings by Windeyer J." 'Whether refusal of interlocutory relief might render the appeal nugatory or prevent appropriate relief being granted if the appeal succeeded.' 'Whether relief should be moulded to avoid prejudice to Trevor Robert Archer, including access to the controlled fund for legal costs.']

Ratio Decidendi

Although Mason P considered the appeal borderline and not strong, it was not unarguable in light of Bridgewater v Leigh. Because disposal of the controlled moneys might put it beyond the power of the Court to grant appropriate relief and might render the appeal nugatory, the status quo should be maintained pending appeal. To avoid unnecessary prejudice to Trevor Robert Archer, the injunction was conditioned by an undertaking as to damages and by permitting withdrawals for specified legal costs up to $109,000, with the appeal expedited.

Court Disposition

Injunction granted; appeal expedited; costs of the motion to be costs in the appeal.

Orders

  • ["Upon the claimants' undertaking as to damages, the moneys held in the controlled moneys account at the St George Bank are to remain in that account until determination of the appeal or further order, subject to Trevor Robert Archer being at liberty to withdraw moneys due or becoming due to his solicitors for the...