Equititrust Limited v Manttan - [2010] NSWCA 95

New South Wales

Court of Appeal

CITATION: Equititrust Limited v Manttan [2010] NSWCA 95

HEARING DATE(S): 3 May 2010

JUDGMENT DATE:
3 May 2010

JUDGMENT OF: Hodgson JA

EX TEMPORE JUDGMENT DATE: 3 May 2010

DECISION: Application for a stay dismissed with costs.

CATCHWORDS: PROCEDURE – Stay of order for removal of caveats – Reliance by primary judge on information not supported by proper evidence – Whether case made out for stay pending hearing of application for leave to appeal.

CATEGORY: Procedural and other rulings

PARTIES: EQUITITRUST LIMITED ACN 061 383 944 (Applicant)
Michael Alan MANTTAN (Respondent)

FILE NUMBER(S): CA 2010/91165

COUNSEL: M YOUNG (Applicant)
F GUTIERREZ (Respondent)

SOLICITORS: Bransgroves Lawyers (Applicant)
Zak Tayyar Burkett & Taylor Lawyers (Respondent)

LOWER COURT JURISDICTION: Supreme Court - Equity Division

LOWER COURT FILE NUMBER(S): 2010/91165

LOWER COURT JUDICIAL OFFICER: Gzell J

LOWER COURT DATE OF DECISION: 23 April 2010

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2010/91165

HODGSON JA
Monday 3 MAY 2010

EQUITITRUST LIMITED v Michael Alan MANTTAN

Judgment

1 HIS HONOUR I am dealing with an application for a stay of an order made on 23 April 2010 by Justice Gzell that certain caveats be withdrawn for the purpose of completing an identified contract of sale, which I am told is due for completion tomorrow.

2 The order does not in terms give a date when the withdrawal is to take place. But in my opinion, the form of the order requiring withdrawal for the purpose of completing this contract sufficiently indicates that the caveats are to be withdrawn so as to enable completion at the time arranged for completion.

3 I have before me a summons seeking leave to appeal from the decision of Gzell J and a notice of appeal. I don't have a notice of motion seeking a stay pending the hearing of the appeal, but that application has been made orally by Mr Young who appears for the applicant, Equititrust.

4 Mr Young's submission is that there are good prospects for obtaining leave to appeal and succeeding on the appeal, because the decision of the primary judge could really be justified only on the basis that there was some evidence of urgency in relation to the completion of this particular sale and, in Mr Young's submission, there was no such evidence. Accordingly, he submits that if the order made by the primary judge is not stayed the appeal will be rendered nugatory and that accordingly the appropriate course is to stay the order pending the hearing of the appeal.

5 There is some force in Mr Young's submission about the lack of evidence about urgency concerning completion of this particular sale. There was material put to the primary judge from the bar table suggesting such urgency, and the primary judge took the view that he could appropriately act on that. In my opinion there is an element of discretion in a judge hearing an urgent application of this kind to act on information that may not be supported by proper evidence,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Equititrust Limited v Manttan

Details

AGLC: Equititrust Limited v Manttan [2010] NSWCA 95
Case: [2010] NSWCA 95
Decision Date: 3 May 2010

CaseChat Overview and Summary

The proceeding concerned an application for a stay of an order for the removal of caveats, brought before Hodgson JA. The dispute arose from the primary judge's decision to order the removal of caveats, a decision the applicant sought to stay pending the hearing of an application for leave to appeal.

The central legal issue before Hodgson JA was whether the applicant had made out a sufficient case for a stay of the removal order. This required consideration of whether the primary judge had relied on information not supported by proper evidence, and if so, whether this warranted intervention by way of a stay pending the appeal.

Hodgson JA determined that the applicant had not demonstrated a sufficient likelihood of success on appeal, nor had they established that the balance of convenience favoured granting a stay. The court found that the grounds for seeking the stay were not sufficiently compelling to override the existing order for removal. Consequently, the application for a stay was dismissed with costs.

Orders

Orders of the court

Application for a stay dismissed with costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Equititrust Limited v Manttan [2010] NSWCA 95
HEARING DATE(S):	3 May 2010
JUDGMENT DATE:	3 May 2010
JUDGMENT OF:	Hodgson JA
EX TEMPORE JUDGMENT DATE:	3 May 2010
DECISION:	Application for a stay dismissed with costs.
CATCHWORDS:	PROCEDURE – Stay of order for removal of caveats – Reliance by primary judge on information not supported by proper evidence – Whether case made out for stay pending hearing of application for leave to appeal.
CATEGORY:	Procedural and other rulings
PARTIES:	EQUITITRUST LIMITED ACN 061 383 944 (Applicant) Michael Alan MANTTAN (Respondent)
FILE NUMBER(S):	CA 2010/91165
COUNSEL:	M YOUNG (Applicant) F GUTIERREZ (Respondent)
SOLICITORS:	Bransgroves Lawyers (Applicant) Zak Tayyar Burkett & Taylor Lawyers (Respondent)
LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	2010/91165
LOWER COURT JUDICIAL OFFICER:	Gzell J
LOWER COURT DATE OF DECISION:	23 April 2010