BREEN v PLUMB [1991] NSWCA 31

BREEN v PLUMB SUPREME COURT OF NEW SOUTH WALES

Kirsy P 19 August 1991, 19 August 1991

[1991] NSWCA 31

PRACTICE AND PROCEDURE — stay — domestic dispute — order for possession — appeal — balance of convenience — held: Stay execution of order for possession pending appeal on terms requiring payment of back rent into account administered by solicitors and expedition of hearing of appeal.

Kirby P Before the Court is an incident of an unfortunate dispute between Ms Diana Breen and Mr Philip Leslie Fuller. (the claimant) and Mr Ronald John Plumb (the Appellant). The claimants are the appellants in an appeal against orders made by Young J on 13 December 1990 which were entered on 7 March 1991. The appeal was filed within time on 3 April 1991. The appeal will be heard in the Court in due course.

At this stage I have only a general understanding of the dispute between the parties. It appears that the claimants lived together in a de facto relationship. The first claimant is the daughter of the opponent. The claimants, together with a child of their relationship, have since before 1985 been living in premises owned by the opponent. Those premises were formerly his home. The opponent's case before Young J was that he had been evicted from the premises on 7 January 1985. The claimants' case is, as I understand it, that they made substantial improvements to the premises. During a very long period, until his Honour's orders were announced, the claimants made payments to the Westpac Banking Corporation as the mortgagee of the opponent.

The opponent called to attention the non-compliance of the claimant with the order for possession made by Young J. He also alleged default on the arrears and a money sum which his Honour found, on adjustment of accounts between them, was owing by the claimants to the opponent. It appears that there is an agreement between the parties that the actual amount of the money outstanding to the opponent will need to be recalculated having regard to suggested mathematical errors in his Honour's reasons.