Klewer v Official Trustee in Bankruptcy (No 2)

[2010] NSWCA 258

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Klewer v Official Trustee in Bankruptcy (No 2) [2010] NSWCA 258

FILE NUMBER(S):
2008/283972

HEARING DATE(S):
On the papers

JUDGMENT DATE:
6 October 2010

PARTIES:
Lucy Patricia Klewer (Applicant)
Official Trustee in Bankruptcy (Respondent)
Attorney General in and for the State of New South Wales (pursuant to s 16 of the Vexatious Proceedings Act 2008)

JUDGMENT OF:
McColl JA Campbell JA Sackville AJA   

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
11674/2008

LOWER COURT JUDICIAL OFFICER:
Schmidt J

LOWER COURT DATE OF DECISION:
18 December 2009

LOWER COURT MEDIUM NEUTRAL CITATION:
[2009] NSWSC 1396

COUNSEL:
Applicant in Person
F Assaf (Respondent)
K E Oliver (Attorney General in and for the State of New South Wales

SOLICITORS:
Applicant in Person
Harris Freidman Laawyers (Respondent)
I V Knight, Crown Solicitor  (Attorney General in and for the State of New South Wales

CATCHWORDS:
PROCEDURE – orders – dissolution of stay of execution of writ of possession

LEGISLATION CITED:

CATEGORY:
Principal judgment

CASES CITED:
Attorney-General (Cth) v Davids Holdings Pty Ltd [1993] ATPR 41-247
Fatimi Pty Ltd v Bryant [2002] NSWSC 750; (2002) Aust Torts Reports 81-677
Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593
In the Marriage of IH & SA Millar (1983) 9 Fam LR 5
Klewer v Official Trustee in Bankruptcy [2010] NSWCA 220

TEXTS CITED:

DECISION:
Stay granted by Beazley JA on 29 June 2010 dissolved forthwith.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2008/283972

McCOLL JA
CAMPBELL JA
SACKVILLE AJA

Date

KLEWER v OFFICIAL TRUSTEE IN BANKRUPTCY (No 2)

Judgment

1. THE COURT:  The Court delivered judgment and made orders in this matter on 29 September 2010:  Klewer v Official Trustee in Bankruptcy [2010] NSWCA 220.

2. In the course of the reasons for judgment, the Court omitted to deal with one matter that had been the subject of submissions.  This judgment corrects that omission.

3. The orders of Schmidt J made on 18 December 2009 included judgment for possession of a particular property, and leave to issue a writ of possession.  On 29 June 2010 Beazley JA ordered that the writ of possession be stayed until further order.

4. The submissions of the Official Trustee in Bankruptcy in the present case included a submission that the Court should lift the stay of execution of the writ of possession granted by Beazley JA on 29 June 2010. 

5. The orders that the Court made on 29 September 2010 did not expressly deal with the stay of the writ of possession.

6. An interlocutory injunction that is granted “until further order” is frequently construed as operating until the determination of the proceedings or further order, which ever happens first:  Attorney-General (Cth) v Davids Holdings Pty Ltd (Drummond J, 2 June 1993); [1993] ATPR ¶41-247; In the Marriage of IH & SA Millar (1983) 9 Fam LR 5 at 6-7 per Nygh J; Fylas Pty Ltd v Vynal Pty Ltd [1992] 2 Qd R 593 at 599 per McPherson SPJ; Fatimi Pty Ltd v Bryant [2002] NSWSC 750; (2002) Aust Torts Reports ¶81-677 at [228].

7. Given the close similarity between a stay granted “until further order” pending an appeal, and an interlocutory injunction, it well may be that, as a matter of construction, the stay ceased to be operative when the Court’s orders were pronounced on 29 September 2010.  However, it is preferable to make an express order, so that the position is clear beyond argument. 

8. The stay was clearly granted to preserve Mrs Klewer’s property rights pending the determination by this court of the matters which it determined on 29 September 2010.  Those matters having been determined adversely to Mrs Klewer, there is no continued purpose in the stay.

9. We order that the stay granted by Beazley JA on 29 June 2010 be dissolved forthwith.

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LAST UPDATED:
6 October 2010