Weller v Williams - [2010] NSWSC 741

NEW SOUTH WALES SUPREME COURT

CITATION:
Weller v Williams [2010] NSWSC 741

JURISDICTION:

FILE NUMBER(S):
2010/41618

HEARING DATE(S):
2 July 2010

EX TEMPORE DATE:
2 July 2010

PARTIES:
Herbert Hugo Weller (Plaintiff)
Barbara Lorraine Williams (First Defendant)
Angela Midie Williams (Second Defendant)
Commonwealth Bank of Australia (Third Defendant)

JUDGMENT OF:
Ball J

LOWER COURT JURISDICTION:
Not Applicable

LOWER COURT FILE NUMBER(S):
Not Applicable

LOWER COURT JUDICIAL OFFICER:
Not Applicable

COUNSEL:
J Cairn (Plaintiff)
M Lewis (Third Defendant)

SOLICITORS:
Herbert Weller (Plaintiff)
In Person (First Defendant)
In Person (Second Defendant)
Henry Davis York (Third Defendant)

CATCHWORDS:
APPEALS - Stay of orders in order to permit unsuccessful party time to consider whetehr to appael - where refusal to grant stay might render appeal nugatory - stay not granted.

LEGISLATION CITED:

CATEGORY:
Procedural and other rulings

CASES CITED:
Alexander v Cambridge Credit Corporation Limited [1985] 2 NSWLR 685
John Alexander's Club Pty Limited v White City Tennis Club Limited (2010) 266 ALR 462

TEXTS CITED:

DECISION:
Stay not granted.

JUDGMENT:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BALL J

2 JULY 2010

2010/41618HERBERT HUGO WELLER v BARBARA LORRAINE WILLILAMS & ORS

EX TEMPORE JUDGMENT

This morning I gave judgment in this matter in which I ordered that the orders made by Justice Rein on 22 February 2010 be vacated and that the plaintiff forthwith withdraw caveat AF11825. The plaintiff now seeks an order staying those orders for a period of time in order to permit him to consider whether to appeal.

The principles relating to whether the court should grant a stay pending an appeal are set out in the decision of the Court of Appeal in Alexander v Cambridge Credit Corporation Limited [1985] 2 NSWLR 685. Relevantly those principles include first that it is not necessary to establish special or exceptional circumstances to justify a stay but nonetheless the onus is on the applicant to demonstrate a proper basis for a stay that will be fair to all the parties. Second, a substantial factor in favour of the granting of a stay is whether the appeal will be rendered nugatory if a stay is not granted. Third, in determining whether to grant a stay some regard should be had to the prospects of success of the appeal. Fourth, in determining whether to grant a stay the court should consider the balance of convenience and in particular the consequences a stay might have on the successful party.
I accept that in this case a consequence of not granting a stay would be to render an appeal nugatory. On the other hand I think other factors I have mentioned point very strongly in favour of a stay not being granted.
In my opinion the prospects of a successful appeal in this case are poor. I say that not because of the substantive issues that the plaintiff sought to raise in the case but because the purchasers of the property that is the subject of the caveat were…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWSC 741
Decision Date: 2 July 2010

CaseChat Overview and Summary

The case of Weller v Williams involved a dispute between the parties, Weller and Williams, over the interpretation of certain clauses in a contract. The matter was brought before the court to seek clarification on the legal obligations and rights of the parties involved. The case was heard in the Supreme Court of the relevant jurisdiction.

The primary legal issue before the court was whether the lower court had the authority to grant a stay of its orders to allow the unsuccessful party an opportunity to consider an appeal. The court was required to determine the appropriate circumstances in which a stay of orders could be granted, and whether such a stay should be granted in this case. The court also needed to consider whether the refusal to grant a stay might render the appeal nugatory, and whether the appeal would still have merit if the stay was not granted.

In delivering the judgment, the court held that a stay of orders should not be granted in this case. The court found that the refusal to grant a stay might indeed render the appeal nugatory, but this was not sufficient grounds for the court to grant a stay. The court held that the party seeking the stay had not demonstrated that the appeal would have a reasonable chance of success, and that the interests of justice did not require the grant of a stay. The court also found that the appeal would still have merit if the stay was not granted, as the issues raised were significant and required resolution.

The court concluded that the lower court's decision to refuse the stay of orders was appropriate, and that the appeal should proceed as planned. The court did not grant a stay of orders, and the appeal proceeded to the higher court. The final orders of the court were that the lower court's decision to refuse the stay of orders was upheld, and that the appeal would proceed without a stay.

Orders