He v Kong [2018] NSWCA 278

He v Kong [2018] NSWCA 278

A stay was granted because (1) the appeal is not hopeless and remains arguable, and (2) there is a real risk that the appeal would be rendered nugatory if the deposit is paid out before determination, making recovery difficult if the appellant succeeds.

Jurisdiction
Australia
Judgment Date
19 November 2018
Procedural Posture
Appeal / Stay Application Pending Appeal
Outcome
Stay granted pending determination of the appeal.
Legal Topics
['stay of Proceedings' 'deposit Recovery' 'appeal' 'stakeholder Payments']
['civil Procedure'] ['stay of Proceedings' 'deposit Recovery' 'appeal' 'stakeholder Payments']

Case Brief

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Procedural Posture

Appeal / Stay Application Pending Appeal

Legal Issues

  1. 1 ['Whether a stay of orders directing payment of a deposit should be granted pending appeal' 'Whether absence of a stay would render the appeal nugatory']

Ratio Decidendi

A stay was granted because (1) the appeal is not hopeless and remains arguable, and (2) there is a real risk that the appeal would be rendered nugatory if the deposit is paid out before determination, making recovery difficult if the appellant succeeds.

Court Disposition

Stay granted pending determination of the appeal.

Orders

  • ['The stay provided for in Order 2 made by McDougall J on 25 October 2018 be continued until determination of the appeal.' 'Whilst the stay remains in place, none of the parties to the present application take any step to obtain payment of any part of the deposit of $1,150,000 held in the trust account of Ronayne...