Ferella v The Official Trustee in Bankruptcy

The applicant, Ferella, sought a stay of orders made by a primary judge appointing trustees for the sale of property under section 66G of the *Conveyancing Act 1919* (NSW). The respondent was the Official Trustee in Bankruptcy.

The central legal issue before the Court of Appeal was whether the applicant had demonstrated a sufficient likelihood of success on appeal to warrant the grant of a stay. This involved considering whether the primary judge had erred in exercising their discretion to appoint trustees for sale, particularly in light of concessions made by the applicant during the proceedings before the primary judge.

Meagher JA found that the appeal had no realistic prospects of success. His Honour reasoned that the concessions made by the applicant before the primary judge were significant and undermined any argument that the primary judge had wrongly exercised their discretion. The Court applied the principle that a stay of execution will generally not be granted where the appeal is unlikely to succeed.

Consequently, the application for a stay was refused.