Re Western Australian Planning Commission; [No 2]

This case concerns an application for the dissolution or variation of a stay order in relation to a decision that is subject to an order nisi for review, which was made returnable in the Court of Appeal. The parties involved are the Western Australian Planning Commission and Commercial Properties. The dispute revolves around the appropriate test to apply after it has been determined that the judge of the General Division had jurisdiction to hear and determine the application. The court had to decide whether to grant dissolution or variation of the stay order.

The legal issues at hand were the appropriate test to apply after determining that the judge of the General Division had jurisdiction, and whether dissolution or variation of the stay order should be granted. The court considered the changed circumstances, fresh evidence, and the balance of convenience in reaching its decision. The court also examined the insistence upon the giving of an undertaking as a means of preventing injustice from being done by the court when it makes an order at an interlocutory stage, before the rights of the parties have been finally determined.

In its reasoning, the court concluded that, on the changed circumstances and fresh evidence in respect of three of the four factors reviewed, the case for dissolving the stay was not sufficient. However, the case for varying the stay order as sought by Commercial Properties for the trustees to provide an acceptable undertaking as to damages in the amount of $330,000 had been sufficiently made. The court also considered further factors such as the unexplained delay in bringing the present application, the proximity of the hearing of the appeal, and the importance of the issues raised by the order nisi.

The final orders made by the court were that the stay order should be varied to require the trustees to provide an acceptable undertaking as to damages in the amount of $330,000. The stay order was not dissolved, but the terms were altered to reflect the changed circumstances and fresh evidence presented.