Gabrielle v Abood

[2022] NSWCA 250

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Gabrielle v Abood [2022] NSWCA 250
Hearing dates:	05 December 2022
Date of orders:	08 December 2022
Decision date:	08 December 2022
Before:	Macfarlan JA
Decision:	Dismiss the application for a stay, with costs.
Catchwords:	Appeal — application for stay of Equity Division orders pending hearing of application for leave to appeal — stay refused
Legislation Cited:	Conveyancing Act 1919 (NSW), s 66G
Cases Cited:	Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Category:	Procedural rulings
Parties:	Chakib Carlo Gabrielle (Applicant) Rima Abood (Respondent)
Representation:	Counsel: D P O’Connor (Applicant) N Kulkarni (Respondent) Solicitors: Redmond Hale Simpson Solicitors and Barristers (Applicant) Lane and O'Rourke Solicitors (Respondent)
File Number(s):	2022/228004
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Equity Citation: [2022] NSWSC 912 Date of Decision: 8 July 2022 Before: Hammerschlag CJ in Eq File Number(s): 2021/233613

Judgment

1. MACFARLAN JA: This is an application for a stay pending a hearing on 21 February 2023 of an application for leave to appeal. The stay is sought of orders made by Hammerschlag CJ in Eq on 8 July 2022 under s 66G of the Conveyancing Act 1919 (NSW) (Abood v Gabrielle [2022] NSWSC 912). His Honour appointed trustees for sale of a property at Condell Park registered in the names of the present applicant, Mr Chakib Gabrielle, and the present respondent, his sister, Ms Rima Abood, as tenants in common. His Honour made orders for the division of the proceeds of sale to adjust the rights of the parties. The orders reflected his Honour’s rejection of Mr Gabrielle’s claim that he is the sole beneficial owner of the property.

2. On 10 June 2022 his Honour had fixed the s 66G application to come before him for hearing on Friday 1 July 2022. On that day Mr Gabrielle, who was unrepresented, sought an adjournment for a substantial period, which his Honour rejected. His Honour did however adjourn the matter until 2pm on the following Monday, 4 July 2022, to give Mr Gabrielle the opportunity to prepare his cross-examination of Ms Abood.

3. The grounds upon which Mr Gabrielle seeks leave to appeal are all related to his contention that he was denied procedural fairness by his Honour’s refusal of the adjournment he sought and dismissal of Mr Gabrielle’s cross-summons.

4. My necessarily limited consideration of Mr Gabrielle’s submissions in support of his proposed appeal does not lead me to the view that he has any substantial prospects of success on appeal. In particular it does not appear that his Honour overlooked any matter of importance when exercising his discretion. The proposed appeal is largely directed to contending that his Honour attached too little weight to various considerations but making good those contentions would not of itself entitle Mr Gabrielle to success on appeal. In these circumstances I proceed on the basis that his proposed appeal is at most barely arguable, and probably not arguable at all.

5. The subject property has been used by the parties as an investment. There is not therefore any sentimental attachment or other reason why Mr Gabrielle would be prejudiced by its sale by the independent trustees who have been appointed. Moreover, the evidence does not suggest any likelihood of the trustees distributing the proceeds of sale prior to the hearing date of 21 February 2023. Indeed, it seems most unlikely that the sale will occur prior to that date, much less any settlement of the sale and a distribution of the proceeds of sale. In this regard, a letter of 14 October 2022 from the trustees suggests that they do not intend to proceed to a sale before the 21 February 2023 hearing. Although it would be open to the trustees to take a different view if circumstances changed, the letter confirms the absence of any present threat of harm to Mr Gabrielle’s interests.

6. Although an applicant for a stay does not have to establish “special or exceptional circumstances”, he or she must demonstrate “a reason or an appropriate case to warrant the exercise of discretion in his [or her] favour” (Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694). In light of the weakness of the proposed appeal and the apparent absence of prospective prejudice to the applicant, I do not consider that that has been demonstrated.

7. I therefore dismiss the application for a stay, with costs.

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Decision last updated: 08 December 2022