Nikoloff v Perpetual Trustee Company Limited

Nikoloff v Perpetual Trustee Company Limited involved an appeal against an order for possession and the payment of a debt in respect of default under a loan agreement. The appeal was dismissed. The appellant, Ms Nikoloff, sought a stay of the primary court's orders for possession and the payment of a debt, pending the determination of her appeal. The appellant contended that the stay was required because the appeal would be rendered nugatory if not granted. The court considered the balance of convenience and whether the stay was in the interests of justice. The court dismissed the application for a stay and provided written reasons. The court found that there was a risk that the Beckenham properties may be sold before the determination of the appeal. However, the significance of this was tempered by the fact that, as a preliminary impression, even if Ms Nikoloff succeeded on the appeal and had the transaction set aside, there would be the prospect that it would be conditional on the payment of the principal sum and at least some interest to Perpetual, which may be greater than the value of the properties. Secondly, on a necessarily preliminary review of the grounds of appeal, it was difficult to conclude that the appeal would enjoy reasonable prospects of success in the relevant sense. Thirdly, the balance of convenience did not favour the grant of a stay. There was no suggestion that Ms Nikoloff was dependent on the rental income. The evidence was that the tenants had not paid rent for some time. Further, the valuation evidence indicated that the realisable value of the Beckenham properties is unlikely to discharge the debt in the event that Ms Nikoloff were to fail in the appeal, with the prospect that Perpetual would be left as an unsecured creditor with risk of under-recovery. There was no evidence in support of Ms Nikoloff's contention that the properties would be realisable at a higher value after the determination of the appeal. There was no suggestion that Perpetual would not be good for the money if the appeal succeeded.