Prime Capital Securities Pty Limited v Sara

Prime Capital Securities Pty Limited sought an urgent stay of a Writ of Possession against Sara in the Court of Appeal of New South Wales. The dispute arose after the writ had already been executed.

The primary legal issue before the Court of Appeal was whether it had the power to grant a stay of a Writ of Possession once that writ had been executed.

Payne JA considered the nature of a stay and the effect of the execution of a writ. His Honour reasoned that a stay operates prospectively, preventing future action. Once a writ of possession has been executed, the possession it authorises has already been taken. Therefore, there was no future action to stay. The Court applied the principle that a stay is a prospective remedy and cannot undo an action that has already been completed.

Consequently, the Notice of Motion filed by Prime Capital Securities Pty Limited on 11 July 2016 was dismissed with costs.