Abraham Property Holdings Pty Ltd v Kehoe

[2002] NSWSC 667

CITATION:	Abraham Property Holdings Pty Ltd v Kehoe [2002] NSWSC 667
CURRENT JURISDICTION:	Common Law Division
FILE NUMBER(S):	SC 11815/02
HEARING DATE(S):	26 July 2002
JUDGMENT DATE:	26 July 2002
PARTIES :	Abraham Property Holdings Pty Ltd Stephen Bernard Kehoe
JUDGMENT OF:	Sperling J at 1

COUNSEL :	Mr G B Evans for the Plaintiff Defendant in person
SOLICITORS:	Tress Cocks & Maddox Lawyers for the Plaintiff Defendant in person
DECISION:	(1) The notice of motion by Mr Kehoe returnable on 5 August 2002 is to be listed in the applications list before the duty judge on that date; (2) The notice of motion by Abraham Property Holdings returnable on that date is similarly to be listed; (3) I order the continuation of the stay ordered by me on 23 July 2002 until 4 p.m. on 5 August 2002; (4) I reserve the question of costs of today.

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Duty List

Sperling J

Friday, 26 July 2002

11815/02 Abraham Property Holdings Pty Ltd v Stephen Bernard Kehoe

Judgment

1 His Honour: This matter was last before me on 23 July 2002. The position at that time is recorded in my judgment of that date.

2 The orders I made on that occasion included that the proceedings be listed in the Registrar's possession list today. The matter has been referred to me as duty judge.

3 Mr Kehoe has now consulted counsel. An application has been filed by him supported by affidavit, seeking continuation of the stay until determination of the appeal. The notice of motion is returnable on 5 August.

4 Abraham Property Holdings has now also filed a notice of motion returnable for 5 August 2002 seeking orders that the notice of appeal be struck out, that the stay ordered by me be lifted or, alternatively, that, if the stay is continued, it should be on terms, including payment for continuing occupation of the premises.

5 The second notice of motion was, I think, delivered late yesterday but has to come to Mr Kehoe's notice only this morning. It makes no practical difference, of course, as to precisely when in the last twenty-four hours the notice of motion has come to Mr Kehoe's attention. The court cannot decide the competence of the appeal without giving Mr Kehoe an opportunity to be heard which means that that issue cannot be decided today as an incidental issue to anything else that the court might do or refrain from doing.

6 The position remains, as it was on 23 July, that if a stay is not granted any benefit of the appeal would be lost. For that reason, the stay should continue unless there are strong reasons to the contrary.

7 It is submitted, on behalf of Abraham Property Holdings that the stay should not be continued without a condition at least that a fee be paid for occupation of the premises in the meantime. There may well be merit in that argument in relation to any stay that might be allowed for a significant period of time.

8 It is, obviously, in the interests of both sides that the matters in issue in relation to the appeal should be resolved as speedily as possible but, in fairness, that can only be done, as I have said, with Mr Kehoe having the opportunity to deal with that issue.

9 In these circumstances, I propose to direct that the notices of motion should be listed before the duty judge rather than the registrar on 5 August 2002. I intend to extend the stay until 4 p.m. on that date. I apprehend that there will be argument about any further continuation of the stay which the duty judge may be able to accommodate on that date or during the week. Whether it will be practicable for the duty judge to deal with the two notices of motion on that date or during that week, I cannot, of course, say but having recorded my view that these matters should be determined as soon as possible, I am sure that the earliest practicable time for hearing of those notices of motion will be fixed.

10 It should be noted by Mr Kehoe that, in relation to his claim for a stay pending appeal and, I apprehend, in relation to any shorter extension of the stay pending determination of the notices of motion, he will be required to meet an argument that a condition of any further extension of the stay should be the payment of money and the provision of security along the lines which are claimed in Abraham Property's notice of motion.

11 The scheme I have just outlined is my best effort to strike a balance between the interests of the parties in the present procedural situation. I make it clear that I am extending the stay without consideration of conditions only because of the short period between now and 5 August. I make the following orders:

(1) The notice of motion by Mr Kehoe returnable on 5 August 2002 is to be listed in the applications list before the duty judge on that date.

(2) The notice of motion by Abraham Property Holdings returnable on that date is similarly to be listed.

(3) I order the continuation of the stay ordered by me on 23 July 2002 until 4 p.m. on 5 August 2002.

(4) I reserve the question of costs of today.

-oOo-

Last Modified: 08/01/2002