Thomas v Driat Pty Limited

In *Thomas v Driat Pty Limited*, the appellant sought a stay of orders made by Windeyer AJ, specifically a writ of possession concerning the appellant's home. The respondent, Driat Pty Limited, was seeking to enforce its rights under a second mortgage over the property.

The primary legal issue before the Court was whether to grant a stay of the writ of possession pending the determination of the appellant's appeal. This required the Court to consider the relevant factors for granting such a stay, including the prospects of success on appeal, the likelihood of hardship to the appellant if the stay was not granted, and whether the appeal would be rendered nugatory without the stay.

Beazley JA considered the factors relevant to granting a stay of execution. The Court determined that a stay was warranted in this instance, balancing the respondent's rights under the second mortgage with the appellant's interest in retaining possession of their home pending the appeal.

The Court ordered that the order made by Windeyer AJ on 22 June 2012 be stayed until further order, except to the extent that the respondent could enforce its second mortgage. Furthermore, the execution of the writ of possession dated 29 June 2012 was stayed until the determination of the appeal or further order. Liberty was granted to the respondent to apply in respect of these orders, and the costs of the motion were made costs in the appeal.