Cusack v Permanent Trustee Company Ltd

The appeal concerned a refusal by a single judge to grant a stay of a default judgment. The appellant, Cusack, sought to appeal this refusal. The respondent was Permanent Trustee Company Ltd.

The primary legal issue before the Court of Appeal was whether the refusal to grant a stay of the default judgment was an appealable decision, and if so, whether the appeal should be granted. The court considered the purpose of an appeal in this context, particularly in light of the existence of a remedy to apply to the division where the order was made to set aside the default judgment.

The Court of Appeal determined that there was no purpose in allowing an appeal against the refusal of a stay when the appellant had a clear remedy available to seek the setting aside of the default judgment itself. The court reasoned that pursuing an appeal against the refusal of a stay would be a futile exercise, as the underlying default judgment remained in place. The appropriate course of action was to address the default judgment directly.

Leave to appeal was dismissed with costs. However, the claimant was granted leave to reinstate the application for leave to appeal by notice of motion filed within 28 days, should it become necessary.