Maytom v Prentice

Gary Maytom sought leave to appeal against a decision of the Federal Circuit Court, which had refused his application to stay a writ of possession due to be executed the next day. The writ of possession was issued in favour of Maxwell Prentice, Mr Maytom’s trustee in bankruptcy. The Federal Circuit Court had made an order that Mr Maytom must vacate the premises at 484 to 486 Hunter Street, Newcastle, within 21 days. The court dismissed Mr Maytom's application for leave to appeal and rejected his request to postpone the execution of the writ of possession.

The legal issue before the court was whether the Federal Circuit Court had erred in refusing to stay the writ of possession and whether substantial injustice would result from the refusal to grant leave to appeal. The court noted that in order to grant leave to appeal, the applicant must demonstrate that the decision in question was attended with sufficient doubt to warrant the grant of leave and that substantial injustice would result from a refusal of leave to appeal. The court considered that the decision of the Federal Circuit Court was a matter of practice and procedure, and the weight that the trial judge had accorded to the factors was ordinarily not a matter that would attract the intervention of appellate courts, unless the judge had acted on a wrong principle, mistook the facts, failed to take into account a relevant consideration or took into account an irrelevant one.

The court found that Mr Maytom had not demonstrated any arguable error in the decision of the Federal Circuit Court and that there was no substantial injustice that would result from the refusal to grant leave to appeal. The court dismissed Mr Maytom's application for leave to appeal and ordered that the respondent trustee's costs of the application for leave to appeal be costs in the administration of the estate.