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

1. 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.

1. 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.

2. 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.

3. 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 not joined in the proceedings.  In those circumstances, I cannot see any basis on which the court could make an order affecting their interests.

4. Mr Cairn, who appears for the plaintiff, stated that he has not had an opportunity to consider my reasons and to determine what grounds of appeal there might be or their prospects of success.  However, he candidly conceded that, having regard to the decision of the High Court in John Alexander's Club Pty Limited v White City Tennis Club Limited (2010) 266 ALR 462, it was difficult to see how orders could be made in this case in circumstances where the purchasers were not joined.

5. In relation to the question of the balance of convenience one difficulty in this case is that there is simply no evidence before me about what consequences a stay would have for the purchasers and since they are not a party to the proceedings they are not in a position to make submissions to me in relation to that issue.  In my opinion this is another factor which points strongly in favour of refusing a stay in this case notwithstanding that the consequences of that refusal will be that any appeal will be rendered nugatory.

6. Having regard to those two matters I am not prepared to grant a stay in this case.

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LAST UPDATED:
6 July 2010