Thomas v Driat Pty Limited

Court of Appeal

New South Wales

Case Title:

Thomas v Driat Pty Limited

Medium Neutral Citation:

[2012] NSWCA 266

Hearing Date(s):

13 August 2012

Decision Date:

13 August 2012

Jurisdiction:

Before:

Beazley JA

Decision:

1. Order (1) made by Windeyer AJ on 22 June 2012 in proceedings 2011/271645 be stayed until further order save to the extent the respondent Driat Pty Limited enforces its second mortgage over the property at *** ******* ***** Point Piper;
2. Execution of the writ of possession relating to the property at *** ******* ***** Wildes Meadow dated 29 June 2012 be stayed until the determination of the appellant's appeal or until further order of the Court;
3. Liberty to the respondent Driat Pty Limited to apply in respect of these orders on 7 days notice should the appellant be in default of the procedural rules relating to preparation of the appeal;
4. Costs of the motion filed 6 July 2012 be costs in the appeal;
5. Note this matter may be appropriate for expedition once it is ready for hearing.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PRACTICE AND PROCEDURE - Stay of orders of lower court pending appeal - Whether stay of writ of possession of appellant's home ought to be granted - Factors affecting grant of stay - Prospects of success on appeal - Likelihood of relevant hardship - Whether appeal rendered nugatory without stay - Stay of execution of writ of possession granted.

Legislation Cited:

Cases Cited:

Serobian v Commonwealth Bank of Australia [2009] NSWCA 309

Texts Cited:

Category:

Principal judgment

Parties:

Carey Yulan Adria Thomas (Appellant)
Driat Pty Limited (Respondent)

Representation

- Counsel:

Counsel:
S A Levitt (Appellant)
D Price (Respondent)

- Solicitors:

Solicitors:
Levitt Robinson Solicitors (Appellant)
Kemp Strang (Respondent)

File number(s):

CA 2012/207761

Decision Under Appeal

- Court / Tribunal:

- Before:

Windeyer J

- Date of Decision:

22 June 2012

- Citation:

Driat Pty Ltd v Thomas [2012] NSWSC 683

- Court File Number(s)

2011/271645

Publication Restriction:

No

JUDGMENT

1. HER HONOUR: The applicant, Ms Carey Thomas, by notice of motion filed on 6 July 2012, seeks orders 1 and 2 in the notice of motion filed on that date. The orders sought were:

   "1 The execution of the writ of possession issued on 29 June 2012 be stayed until the determination of the anticipated appeal before the NSW Supreme Court of Appeal or until further order of this Honourable Court.

   2 The operation and enforcement of the judgment of Windeyer AJ handed down 22 June 2012 be stayed until the determination of the anticipated appeal before the NSW Supreme Court of Appeal or until…