STEPHEN MICHAEL LARKIN v MILCHAS INVESTMENTS PTY LTD [1989] NSWCA 130

STEPHEN MICHAEL LARKIN v MILCHAS INVESTMENTS PTY LTD [1989] NSWCA 130

Although Dr Larkin had minimally arguable points on contract and estoppel, the balance of convenience did not favour granting a stay because postponing the auction would entail significant wasted costs and Dr Larkin could still bid at auction, and could not give a satisfactory undertaking as to damages.

Parties
Claimant: Stephen Michael Larkin; Opponent: Milchas Investments Pty Ltd
Jurisdiction
Australia
Judgment Date
13 June 1989
Procedural Posture
Application for Stay/appeal / Interlocutory Application Before Court of Appeal; Post Judgment in Supreme Court, Pre Appeal Hearing
Outcome
Stay application dismissed; appeal expedited
Legal Topics
Vendor and Purchaser Dispute, Stay of Judgment, Caveat Removal, Balance of Convenience, Expedition of Appeal
Property Law Contract Law Vendor and Purchaser Dispute Stay of Judgment Caveat Removal Balance of Convenience Expedition of Appeal

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Parties

Stephen Michael Larkin

Claimant

Milchas Investments Pty Ltd

Opponent

Procedural Posture

Application for Stay/appeal / Interlocutory Application Before Court of Appeal; Post Judgment in Supreme Court, Pre Appeal Hearing

Legal Issues

  1. 1 Whether a stay of Young J's judgment should be granted
  2. 2 Whether there is an arguable point on appeal concerning existence of contract, estoppel, and misrepresentation under Trade Practices Act
  3. 3 Whether balance of convenience favours grant of interlocutory relief

Ratio Decidendi

Although Dr Larkin had minimally arguable points on contract and estoppel, the balance of convenience did not favour granting a stay because postponing the auction would entail significant wasted costs and Dr Larkin could still bid at auction, and could not give a satisfactory undertaking as to damages.

Court Disposition

Stay application dismissed; appeal expedited

Orders

  • Application in paragraph 2 of the notice of motion dismissed
  • Appeal to be expedited to be heard on 27 June 1989