123 259 932 Pty Ltd v Cessnock City Council (No 2)

In *123 259 932 Pty Ltd v Cessnock City Council (No 2)*, the Court of Appeal considered an application by Cessnock City Council for a stay of execution of certain orders made by the Court on 16 March 2023, pending the Council's application for special leave to appeal to the High Court of Australia.

The primary legal issue before the Court of Appeal was the test to be applied when considering a stay of proceedings pending an application for special leave to appeal to the High Court. Specifically, the Court had to determine whether the applicant for the stay needed to demonstrate a likelihood of obtaining special leave, or if establishing sufficiently significant prospects of success was sufficient.

Kirk JA granted the stay, applying the principle that an applicant for a stay pending an application for special leave to appeal to the High Court need not show they are likely to obtain special leave. It was sufficient to establish that the prospects of success were sufficiently significant to warrant a stay in all the circumstances. The Court noted the undertaking of the Council to prosecute its application for special leave and any subsequent appeal with due diligence. The stay was granted subject to the Council paying a specified sum into court or a controlled monies account within 28 days, and the Council was ordered to pay the costs of the stay application.