Weller v Williams

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Weller v Williams  [2010] NSWCA 201

FILE NUMBER(S):
2010/41618

HEARING DATE(S):
9 August 2010

JUDGMENT DATE:
9 August 2010

EX TEMPORE DATE:
9 August 2010

PARTIES:
Herbert Hugo WELLER  (appellant)
Barbara Lorraine WILLIAMS  (first respondent) 
Angela Midie WILLIAMS  (second respondent)
COMMONWEALTH BANK OF AUSTRALIA ABN 48123123124 (third respondent)

JUDGMENT OF:
Hodgson JA     

LOWER COURT JURISDICTION:
Supreme Court

LOWER COURT FILE NUMBER(S):
2010/41618

LOWER COURT JUDICIAL OFFICER:
Ball J

LOWER COURT DATE OF DECISION:
2 July 2010

LOWER COURT MEDIUM NEUTRAL CITATION:
Weller v Williams [2010] NSWSC 716

COUNSEL:
J E ARMFIELD /(H Weller (in person)  (appellant)
A A HENSKENS/ A R ZAHRA  (third respondent) 

SOLICITORS:
Herbert Weller Solicitor  (appellant)
Henry Davis York  (third respondent) 

CATCHWORDS:
PROCEDURE – Stay – Appeal rendered nugatory if stay not granted – Exceptional circumstances – Stay refused. 

LEGISLATION CITED:
Real Property Act s 43A

CATEGORY:
Procedural and other rulings

CASES CITED:

TEXTS CITED:

DECISION:
Notice of Motion dismissed with costs. 

JUDGMENT:

- 3 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2010/41618

HODGSON JA

Monday 9 AUGUST 2010

Herbert Hugo WELLER v Barbara Lorraine WILLIAMS

Judgment

1. HIS HONOUR:  I am dealing with an application for an order that orders made by Justice Ball on 2 July 2010 be stayed pending the determination of the appeal in this matter.  A very strong consideration in favour of granting this motion is the submission that the appeal would be rendered nugatory if I don't grant it.  However, I have decided that I should not grant the stay, because I think the factors against granting the stay in this case have the exceptional effect of outweighing that consideration.

2. The first matter that I would mention is that there was a fundamental deficiency of parties in the proceedings below.  The purchasers of the property were not joined as parties, and in those circumstances the case, as it was constituted below, had to be dismissed irrespective of its merits otherwise.  Success on the appeal would depend on obtaining orders from the Court of Appeal allowing an amendment of the proceedings at first instance to seek relief against these parties, and the joining of them on appeal.  This would be a complex and possibly expensive procedure which, to my mind, would have to be weighed against this application simply by reason of the complexity and possible expense which it could introduce into the appeal.

3. It is to my mind doubtful that the relief of adding these parties would be permitted on appeal.  No reason apart from oversight has been advanced for not including them in the first instance.

4. A second reason, apart from the fundamental merits, that introduces a difficulty into the case, is that the instruments relied on by the appellant to claim an equitable interest have up to this time been, and will for some little time in the future be, unenforceable by reason of non-payment of duty.

5. An undertaking has been given that this will be rectified,…