123 259 932 Pty Ltd v Cessnock City Council (No 2) [2023] NSWCA 89

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: 123 259 932 Pty Ltd v Cessnock City Council (No 2) [2023] NSWCA 89 Hearing dates: 8 May 2023 (on the papers) Date of orders: 9 May 2023 Decision date: 09 May 2023 Before: Kirk JA at [1] Decision: (1) The Court notes the undertaking of the respondent Council to prosecute its application for special leave to appeal and any appeal in the High Court with due diligence. (2) Subject to any order of the High Court of Australia, execution of orders 2, 3 and 4 made by this Court on 16 March 2023 is stayed until determination of the respondent's application for special leave to appeal to the High Court from those orders and, if special leave is granted, until determination of the appeal to that Court. (3) Order 2 ceases to have effect if the respondent has not, within 28 days of these orders being made, paid the sum of $6,154,459.40 either into Court or, if so agreed between the parties, into a controlled monies account under the joint control of the solicitors for the two parties (with the Registrar to be notified if the latter has occurred). (4) The appellant company is to pay the costs of the application for a stay. (5) Liberty to apply. Catchwords: CIVIL PROCEDURE — Court of Appeal — Stay of proceedings — Stay pending application for special leave to appeal to High Court — Nature of test — Requirement of "exceptional circumstances" — Applicant need not show likely to obtain special leave — Sufficiently significant prospects established to warrant a stay in all the circumstances — Stay granted Cases Cited: 123 259 932 Pty Ltd v Cessnock City Council [2023] NSWCA 21 Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Ampolex Ltd v Perpetual Trustee Co (Canberra) Ltd (1996) 70 ALJR 603; [1996] HCA 15 Apache Northwest Pty Ltd v Western Power Corporation (1998) 72 ALJR 1136 Australian Broadcasting Corporation v O'Neill (2006) (2006) 227 CLR 57; [2006] HCA 46 Bryant v Commonwealth Bank of Australia (1996) 70 ALJR 306; [1996] HCA 3 Gerah Imports Pty Ltd v Duke Group Ltd (1994) 68 ALJR 196; [1994] HCA 3 Haydon v Chivell (1999) 73 ALJR 1311; [1999] HCA 39 Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (No 1) (1986) 161 CLR 681; [1986] HCA 84 Mercanti v Mercanti (2017) 91 ALJR 258; [2017] HCA 1 N v G (1998) 72 ALJR 1329 Obeid v R (2016) 90 ALJR 447; [2016] HCA 9 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 72 ALJR 869; [1998] HCA 32 Pelechowski v Registrar, Court of Appeal (1998) 72 ALJR 711 Rinehart v Welker (2012) 83 NSWLR 347; [2012] NSWCA 1 United Mexican States v Cabal (2001) 209 CLR 165; [2001] HCA 60 Zoeller v Federal Republic of Germany (1989) 64 ALJR 137; [1989] HCA 67 Texts Cited: Justice Phillip Priest, "Special Leave to Appeal to the High Court in Criminal Cases: A Change of Approach?" (2018) 92 ALJ 957 Category: Procedural rulings Parties: 123 259 932 Pty Ltd (Appellant; respondent on the motion)