Hammond v J P Morgan Trust Australia Ltd

The appeal concerned an application by the appellant, Hammond, for a stay of execution of a writ of possession pending the hearing of her appeal against a decision of a single judge. The respondent was J P Morgan Trust Australia Ltd. The appeal was brought before the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the appellant's proposed appeal was arguable, particularly in light of the potential to adduce further evidence. The court also considered whether submissions made for the first time on the review application would have altered the outcome before the single judge, pursuant to s 46(4) of the *Supreme Court Act 1970* (NSW) and s 56 of the *Civil Procedure Act 2005* (NSW).

The Court of Appeal determined that the appellant's appeal had an arguable basis, especially if she intended to rely on evidence not previously before the primary judge. The court reasoned that the admission of new evidence could potentially lead to a different outcome. Consequently, the court made orders to facilitate the proper presentation of the appeal, including directions for the filing of further evidence by both parties and a timetable for written submissions and an early hearing. The court also extended the existing stay of execution of the writ of possession until the appeal was heard.