Piety Developments Pty Ltd v Cumberland City Council (No 2)

Piety Developments Pty Ltd sought an urgent stay of proceedings from the Court of Appeal of New South Wales pending an anticipated, but as yet unfiled, application for special leave to appeal to the High Court of Australia. The dispute concerned the subject land at 13 John Street, Lidcombe, NSW.

The primary legal issue before the Court of Appeal was whether to grant the urgent stay. This required the Court to consider the test established in *Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation* and determine if there was a substantial prospect that special leave to appeal to the High Court would be granted.

The Court applied the *Burgundy Royale* test, which requires an applicant seeking a stay pending an application for special leave to demonstrate that their appeal has a substantial prospect of success. In this instance, the Court found that Piety Developments had not satisfied this threshold. Consequently, the application for a stay was refused.

The Court ordered that the notice of motion filed on 6 August 2024 be dismissed. This outcome was contingent upon Cumberland City Council providing specific undertakings on a without admissions basis: first, to Piety Developments, that it would not dispose of or encumber the subject land until Piety’s High Court application for special leave was determined; and second, to the Court, that if the Council passed a rescission motion at its upcoming meeting, it would not rely on that fact in opposing Piety’s special leave application. The applicant was ordered to pay the respondent’s costs.