Ollier v Magnetic Island Country Club Inc

COURT OF APPEAL

WILLIAMS JA

Appeal No 8099 of 2003

GLENN THOMAS OLLIER Respondent/Plaintiff

and

SUSAN OLLIER (LITIGATION GUARDIAN) Respondent/Plaintiff

and

MAGNETIC ISLAND COUNTRY CLUB INCORPORATED
(NOT PARTY TO APPEAL) First Defendant

and

MARK ROY SHANAHAN Applicant/Second Defendant

BRISBANE

..DATE 31/08/2004

ORDER

MS M H HINDMAN (instructed by Wilson Ryan Grose) for the applicant

MR J BAULCH SC with MR M DREW (instructed by Lee Turnbull & Co) for the respondent

WILLIAMS JA: This is an application for a stay of execution of a judgment pending the hearing of an application for special leave to appeal to the High Court. The material indicates that the special leave application will not be heard until the first half of 2005.

Having read the material I am satisfied that a stay should be granted but on conditions. What I propose is to order that there be a stay of execution of the judgment of the Court of Appeal dated 30th April 2004 until such time as the application for special leave to appeal to the High Court is heard and decided or further earlier order, on the following conditions:

(1) That the applicant within 10 days file a sworn statement of assets and liabilities in form 71 of the Uniform Civil Procedure Rules, including therein full details of the proceeds of sale of the former residence at 12 Bond Court, Horseshoe Bay and any other assets that have been disposed of since the commencement of the proceedings, and;

(2) That within 10 days the applicant file an undertaking to the Court not to dispose of any further assets or encumber any assets until the application for special leave to appeal is heard and determined, save any disposal in the ordinary course of business and further except as provided by order of the Court.

...

WILLIAMS JA: Order that the applicant pay the respondent's costs of and incidental to the application to be assessed.

Well, that will be the formal order of the Court in the terms that I have announced.

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CaseChat Overview and Summary

The matter before the Court of Appeal involves an application for a stay of execution of a judgment pending the hearing of an application for special leave to appeal to the High Court. The respondent, Glenn Thomas Ollier, and Susan Ollier (as his litigation guardian) are the plaintiffs in the case against the Magnetic Island Country Club Incorporated and Mark Roy Shanahan, the latter being the applicant and second defendant. The appeal number is 8099 of 2003, and the application was heard by Justice Williams. The primary issue before the court was whether to grant a stay of execution of the judgment pending the hearing of an application for special leave to appeal to the High Court.

The court was required to determine if the applicant, Mark Roy Shanahan, met the criteria for a stay of execution, considering the likely delay in the hearing of the special leave application until the first half of 2005. The court also had to consider the conditions under which such a stay should be granted, if at all. The court reviewed the material presented by both parties and concluded that a stay should be granted, albeit on certain conditions.

In granting the stay, the court imposed two conditions on the applicant: first, to file a sworn statement of assets and liabilities, including details of proceeds from the sale of the former residence at 12 Bond Court, Horseshoe Bay, and any other assets disposed of since the commencement of the proceedings. Second, the applicant must file an undertaking to the court not to dispose of any further assets or encumber any assets until the application for special leave to appeal is heard and determined, except in the ordinary course of business or as otherwise permitted by the court. The court also ordered the applicant to pay the respondent's costs of and incidental to the application, to be assessed.

In conclusion, the Court of Appeal granted the applicant's request for a stay of execution of the judgment pending the hearing of the application for special leave to appeal to the High Court, subject to the conditions outlined. The applicant must comply with the conditions within the stipulated timeframe, and the costs of the application were ordered to be paid by the applicant.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established