Lawrence v Gunner

Case [2015] NSWCA 322

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Lawrence v Gunner [2015] NSWCA 322
Hearing dates:12 October 2015
Date of orders: 15 October 2015
Decision date: 15 October 2015
Before: Gleeson JA
Decision:

1.   Subject to order 2 below, stay the enforcement of orders 2 and 3 made by Stevenson J on 21 August 2015 until the determination of the appeal or earlier further order.
2.   The stay in order 1 above does not prevent the enforcement of orders 2 and 3 made on 21 August 2015 up to a maximum amount of $15,000 together with interest thereon.
3.   Otherwise dismiss the applicants’ notice of motion filed on 12 October 2015.
4.   Costs of the motion be the applicants’ cost in the appeal.

Catchwords: PROCEDURE – stay pending appeal – money judgment – order remitting possession proceedings to NCAT for making orders terminating residential tenancy agreement and for possession – whether arguable grounds of appeal – appellants seek to rely on further evidence on appeal – challenge to findings based on credibility – where the balance of convenience lies
Legislation Cited: Supreme Court Act 1970 (NSW) s 75A(8)
Uniform Civil Procedure Rules 2005 (NSW) rr 36.7, 51.18, 51.53
Cases Cited: Akins v National Australia Bank (1994) 34 NSWLR 155
Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 130
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Kalifair Pty Ltd v Digi-Tech (Australia) Ltd [2002] NSWCA 383; 55 NSWLR 737
TCN Channel 9 Pty Ltd v Antoniadis [No 2] [1999] NSWCA 104; 48 NSWLR 381
Vaughan v Dawson [2008] NSWCA 169
Fox v Percy [2003] HCA 22; 214 CLR 118
Devries v Australian National Railways Commission [1993] HCA 78; 177 CLR 472
Tjiong v Tjiong [2012] NSWCA 201
Ramsay v BigTinCan Pty Ltd [2014] NSWCA 324
Category:Procedural and other rulings
Parties: Wayne Lawrence (First Applicant)
Valerie Lawrence (Second Applicant)
Francis Beatrice Gunner (Respondent)
Representation:

Counsel:
First Applicant (Self-represented)
Second Applicant (No appearance)
A Hourigan (Respondent)

  Solicitors:
First Applicant (Self-represented)
Second Applicant (No appearance)
Paton Hooke Lawyers (Respondent)
File Number(s):2015/258609
 Decision under appeal 
Court or tribunal:
Supreme Court
Jurisdiction:
Equity Division
Citation:
[2015] NSWSC 944; [2015] NSWSC 1229
Date of Decision:
16 July 2015; 21 August 2015
Before:
Stevenson J
File Number(s):
2012/277403

Judgment

  1. GLEESON JA: Before the Court is an application for a stay pending the hearing of an appeal concerning judgments of Stevenson J given on 16 July 2015 and 21 August 2015: Lawrence v Gunner; Gunner v Lawrence [2015] NSWSC 944 and [2015] NSWSC 1229.

  2. The first judgment dealt with a claim by the applicants, Mr and Mrs Lawrence, who were the plaintiffs in the proceedings below, for damages for breach of contract and/or equitable compensation and related relief on the basis of certain alleged agreements for the subdivision development of various properties at Old Bar, Beecroft, Mount Colah, 132 Clontarf Street, Balgowlah and 134 Clontarf Street, Balgowlah. In addition, his Honour dealt with a…

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AGLC
Lawrence v Gunner [2015] NSWCA 322
Case
[2015] NSWCA 322
Decision Date

CaseChat Overview and Summary

In *Lawrence v Gunner*, the appellants sought a stay of enforcement of orders made by Stevenson J on 21 August 2015, which had remitted possession proceedings to the NSW Civil and Administrative Tribunal (NCAT) for the making of orders terminating a residential tenancy agreement and granting possession. The respondents sought to enforce these orders.

The primary legal issue before Gleeson JA was whether there were arguable grounds of appeal against Stevenson J's orders, and if so, where the balance of convenience lay in granting a stay pending the determination of the appeal. The appellants indicated an intention to rely on further evidence on appeal and challenged findings based on credibility.

Gleeson JA determined that there were arguable grounds of appeal, particularly concerning the admission of further evidence and the challenge to credibility findings. The court considered the balance of convenience, noting the potential prejudice to both parties. Ultimately, a partial stay was granted, allowing for the enforcement of the orders up to a specified monetary amount ($15,000 plus interest), while the remainder of the enforcement was stayed pending the appeal. The applicants' motion was otherwise dismissed, with costs reserved.

Orders

Orders of the court

1. Subject to order 2 below, stay the enforcement of orders 2 and 3 made by Stevenson J on 21 August 2015 until the determination of the appeal or earlier further order.

2. The stay in order 1 above does not prevent the enforcement of orders 2 and 3 made on 21 August 2015 up to a maximum amount of $15,000 together with interest thereon.

3. Otherwise dismiss the applicants’ notice of motion filed on 12 October 2015.

4. Costs of the motion be the applicants’ cost in the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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