Piety Developments Pty Ltd v Cumberland City Council

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Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Piety Developments Pty Ltd v Cumberland City Council [2024] NSWCA 18
Hearing dates: 5 February 2024
Date of orders: 5 February 2024
Decision date: 05 February 2024
Before: Gleeson JA
Decision:

(1)   That order (2) made by Parker J on 15 December 2023 be stayed pending the determination of the appeal.

(2)   Note the undertaking given by the appellant by its counsel to prosecute the appeal with due diligence.

(3)   Expedite the hearing of the appeal.

(4)   Grant leave to the parties to approach the Registrar to obtain a hearing date with an estimate of one day.

(5)   Stand over the proceedings before the Registrar on 12 February 2024 and direct the parties to agree in advance of that date a timetable for the preparation of the appeal books and exchange of written submissions.

(6)   Costs of the appellant’s motion filed 2 February 2024 will be costs in the cause.

Catchwords:

CIVIL PROCEDURE — stay of judgment pending appeal — where primary judge dismissed claim for specific performance of contract for sale of land and discharged injunction restraining respondent Council from considering rescission motion — where respondent acknowledged that appeal raised serious issues — whether balance of convenience or balance of hardship favours stay of order discharging interlocutory injunction

Cases Cited:

Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685

Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; [2002] NSWCA 383

Category:Procedural rulings
Parties: Piety Developments Pty Ltd (Appellant)
Cumberland City Council (First respondent)
Bilal El-Cheikh (Second respondent)
Representation:

Counsel:
Mr F Corsaro SC (Appellant)
Mr A J McInerney SC (First respondent)

Solicitors:
Darby Jones Lawyers (Appellant)
McCabes Lawyers (First respondent)
File Number(s): 2024/14852
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Equity Division
Citation:

[2023] NSWSC 1627

Date of Decision:
15 December 2023
Before:
Parker J
File Number(s):
2022/38975

Judgment

  1. GLEESON JA: Application is made by the appellant, Piety Developments Pty Ltd (Piety), for a stay pending appeal against the orders made by Parker J on 15 December 2023 dismissing Piety’s claim and discharging the interlocutory injunction granted by the Court below on 9 February 2022, as extended on 14 February 2022 until further order: Piety Developments Pty Ltd v Cumberland City Council (No 3) [2023] NSWSC 1627.

  2. Piety was the plaintiff in the proceedings below; it sought specific performance of an alleged contract for sale of land at Lidcombe between the Council as vendor and Piety as purchaser. The injunction granted below was in the following terms:

4.   Upon provision of an undertaking as to damages by the Plaintiff, made through its counsel, to pay the applicable filing fees as soon as practicable an interim injunction, until further order of the Court, from the Defendant taking any action to rescind the resolution of the Defendant dated 3 November 2021 concerning the sale of the property located at 13 John Street, Lidcombe NSW 2141 (the Property)…

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Details
Case
[2024] NSWCA 18
Decision Date

CaseChat Overview and Summary

Piety Developments Pty Ltd sought a stay of orders made by Parker J in the Supreme Court of New South Wales, which had dismissed its claim for specific performance of a contract for the sale of land and discharged an interlocutory injunction that had restrained Cumberland City Council from considering a motion to rescind the contract. The appeal concerned the discharge of this injunction.

The primary legal issue before Gleeson JA was whether the balance of convenience or hardship favoured granting a stay of the order discharging the interlocutory injunction pending the determination of the appeal. The respondent Council acknowledged that the appeal raised serious questions to be tried.

Gleeson JA reasoned that a stay of the order discharging the injunction was warranted. The court considered the potential hardship to the appellant if the Council proceeded to consider rescission while the appeal was pending, particularly given the serious issues raised. The court also noted the undertaking by the appellant to prosecute the appeal with due diligence.

The court ordered that the order made by Parker J on 15 December 2023 be stayed pending the determination of the appeal. The hearing of the appeal was expedited, and the parties were granted leave to approach the Registrar to obtain a hearing date, with directions given for the preparation of appeal books and the exchange of submissions. Costs of the appellant's motion were made costs in the cause.

Orders

Orders of the court

(1) That order (2) made by Parker J on 15 December 2023 be stayed pending the determination of the appeal.

(2) Note the undertaking given by the appellant by its counsel to prosecute the appeal with due diligence.

(3) Expedite the hearing of the appeal.

(4) Grant leave to the parties to approach the Registrar to obtain a hearing date with an estimate of one day.

(5) Stand over the proceedings before the Registrar on 12 February 2024 and direct the parties to agree in advance of that date a timetable for the preparation of the appeal books and exchange of written submissions.

(6) Costs of the appellant’s motion filed 2 February 2024 will be costs in the cause.

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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