Misan v Markham Real Estate Partners (KSW) Pty Ltd

The appellant, Mr Misan, sought a stay of execution of a judgment granted by the court below to the respondent, Markham Real Estate Partners (KSW) Pty Ltd. The dispute arose from the respondent's actions in levying execution of the judgment, which the appellant contended were in breach of an inter partes agreement. The application for a stay was heard by Leeming JA.

The primary legal issue before the court was whether the appellant had established a sufficient case for a stay of execution. This involved considering whether the appeal was brought promptly, whether the appeal was reasonably arguable, and the financial position of the appellant in relation to the judgment debt. The court also had to determine the appropriate conditions for any stay, particularly in light of the respondent's actions in attempting to execute the judgment.

Leeming JA ordered a stay of execution on the condition that the appellant provide an undertaking not to sell or further encumber his interests in specific real property, except to meet his legal costs for the appeal. This undertaking was considered in conjunction with the fact that the judgment substantially exceeded the appellant's assets and that the respondent had, in breach of an inter partes agreement, taken steps to levy execution. The court also set aside a writ for levy of property filed by the respondent and made orders regarding the costs of various notices of motion, reserving the question of whether those costs should be on an ordinary or indemnity basis. Directions were also given for the filing of submissions on the appeal itself.