He v Kong

The application before Macfarlan JA concerned an appeal by He against orders made by McDougall J on 25 October 2018. The central dispute involved a deposit of $1,150,000 held in trust. The applicant sought a stay of the primary judge's orders pending the determination of the appeal.

The primary legal issue before Macfarlan JA was whether the appeal would be rendered nugatory if a stay was not granted. This involved assessing the potential prejudice to the appellant if the deposit were to be paid out before the appeal was heard and determined.

Macfarlan JA reasoned that the absence of a stay could indeed render the appeal nugatory, as the purpose of the appeal might be defeated if the funds were disbursed. The court applied the principle that a stay should be granted where there is a real risk that the appeal, if successful, would be rendered ineffective. No novel issue of principle was identified as arising from the application.

Consequently, Macfarlan JA ordered that the stay previously granted by McDougall J on 25 October 2018 be continued until the determination of the appeal. Further orders were made to prevent any party from taking steps to obtain payment of the deposit whilst the stay remained in effect, and the costs of the stay application were made costs in the appeal.