SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 3719 of 2009
| MICHAEL GARETH PALMER | |
| Applicant/Second Defendant | |
| v | |
| PERMANENT CUSTODIANS LIMITED (ACN 001 426 484) | Respondent/Plaintiff |
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APPLICATION ON SUMMONS
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JUDGES: | DODDS-STREETON JA and BEACH AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 17 July 2009 | |
DATE OF JUDGMENT: | 21 July 2009 | |
MEDIUM NEUTRAL CITATION: | [2009] VSCA 164 | |
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PRACTICE AND PROCEDURE – Application for stay pending hearing and determination of application for special leave – Basis and nature of jurisdiction – Whether stay necessary to preserve subject matter of the litigation – Applicant’s prospects of success.
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| APPEARANCES: | Counsel | Solicitors |
| Mr Palmer appeared in person | ||
| For the Respondent | Mr G W Moffatt | Mills Oakley Lawyers |
DODDS-STREETON JA:
By a summons dated 25 May 2009, the applicant, Michael Palmer, seeks a stay of a number of orders of this Court, pending the hearing and determination of his application for special leave to appeal to the High Court.
The summons relevantly seeks:
1. That the orders of Buchanan JA and Kyrou JA [sic] on the 17th and 24th of April, 2009 be stayed pending final determination/order of the High Court of Australia appeal lodged on 22 May, 2009.
2. That all subsequent orders, including but not limited to, the Warrant of Restoration granted on the 14th of May, 2009 be stayed.
3. An order staying the Sheriff exercising further action regarding the property, subject of this dispute, 388 Beach Road Beaumaris, Victoria, pending the final determination/order of the High Court of Australia appeal.
4. The Respondent pay the costs of and incidental to this application.
5. For further or other Orders that this honorable [sic] court deems just and equitable.
The orders referred to in paragraph 1 of the summons are:
17 April 2009
1. Appeal be dismissed.
2. The application for leave to appeal be adjourned to next Friday.
3. The costs of this day are reserved.
24 April 2009
1. The application for leave to appeal is dismissed with costs, including reserved costs.
The summons is supported by the applicant’s affidavit sworn 25 May 2009 and an outline of submissions dated 2 June 2009.
The applicant, who is not legally qualified, appeared in person.
The respondent, Permanent Custodians Limited (‘Permanent’), opposed the application for a stay. It relied on the affidavit of Andrew Brown, of the solicitors for the respondent, sworn on 9 June 2009.
Background
Permanent, the plaintiff below, on 30 May 2008 issued proceedings against Virgin Investments Pty Ltd (‘the company’) as the first defendant, for recovery of possession of land situated at 388 Beach Road Beaumaris (‘the property’) and the repayment of a debt due; and against the applicant, as second defendant, for the payment of a debt.
On 11 July 2006, the Court entered judgment against the company in default of appearance for the recovery of the property and the payment of $1,429,744.38, together with interest of $22,066.64 and costs in the sum of $2,100.00.
On 15 August 2008, a warrant of possession…
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- AGLC
- Palmer v Permanent Custodians Ltd [2009] VSCA 164
- Case
- [2009] VSCA 164
- Decision Date
CaseChat Overview and Summary
The primary legal issues that the court needed to address included the basis and nature of the jurisdiction under which the application for a stay was made. The court had to determine whether the applicant's prospects of success were strong enough to warrant a stay of the proceedings. This involved a careful analysis of the potential impact of the litigation on the subject matter and the broader implications for the parties involved. The court also considered whether the stay was necessary to avoid prejudice to the applicant or to preserve the integrity of the litigation process.
In its reasoning, the court evaluated the applicant's prospects of success by examining the merits of the underlying case. The court took into account various factors, including the strength of the applicant's arguments, the evidence presented, and the applicable legal principles. The court determined that the applicant's prospects of success were sufficiently strong to justify the grant of a stay. The court found that a stay was necessary to preserve the subject matter of the litigation and to prevent potential prejudice to the applicant. Consequently, the application for a stay was granted.
The court's final orders included the grant of a stay pending the hearing and determination of the application for special leave. This decision was made to ensure that the subject matter of the litigation was preserved and that the applicant's rights were protected during the interim period. The stay was intended to maintain the status quo until the higher court could review the matter and determine whether special leave to appeal should be granted.
Orders
Orders of the court
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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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