Toltz Pty Ltd v City Garden Australia Pty Ltd (in liq) (stay application)

Toltz Pty Ltd (the applicant/cross-appellant) sought an interlocutory injunction from the Court of Appeal of New South Wales to restrain the receiver and manager appointed by lenders from paying certain proceeds of sales and rental income to the lenders. This application was made pending the hearing of an appeal concerning a challenge to a loan agreement under which the applicant was in default. The respondent was City Garden Australia Pty Ltd (in liq).

The primary legal issue before the Court of Appeal was whether to grant an extension of time for the applicant to file a notice of motion seeking an interlocutory injunction. This injunction was intended to prevent the receiver and manager from distributing funds to the lenders until the applicant's challenge to the underlying loan agreement was resolved. The court was therefore required to consider the merits of the application for the injunction in the context of the application for an extension of time.

The Court of Appeal considered the principles governing the grant of interlocutory injunctions and extensions of time for filing such applications. While acknowledging the applicant's right to pursue its appeal, the court ultimately determined that the application for the interlocutory injunction should be dismissed. The court granted leave to file the notice of motion, but then dismissed the motion itself.

Consequently, the Court of Appeal ordered that the applicant be granted leave to file its notice of motion dated 25 July 2024, but dismissed the notice of motion. The costs of the motion were ordered to be costs in the cross-appeal.