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. There is no dispute that a stay should be provided, at least for a short time, in respect of that sum in order to permit the parties to endeavour to reach agreement on the amount which is outstanding by the premises of his Honour's reasons. That leaves the order for possession which his Honour made against the claimants in favour of the opponent. The claimants say that I should stay execution upon that order in order to permit them to have the benefit of their appeal to this Court as of right. Counsel for the claimants suggests that there are points of substance to be argued in the appeal. I am willing in this case to accept that this is so. The opponent says that he has been out of possession of the premises now for more than seven years, that he is a man of seventy-two years and is not in good health and that he desires to return to what is, after all, his own property. I have no evidence before me concerning the present domestic and residential circumstances of the opponent. On a balance of convenience, on the basis of the material I have seen, I consider that it would cause greater 2 UNREPORTED JUDGMENTS inconvenience to dislocate the claimants and their daughter and to require them to find alternative accommodation pending the outcome of the appeal. The living arrangements which they presently enjoy have now lasted for a considerable time, according to the reasons of Young J. The more appropriate way to reduce the inconvenience to both parties, and to terminate this unfortunate litigation, is to bring the matter on for hearing of the appeal with a degree of expedition. I will in due course so order. The claimants offered today to pay $120 per week as, in effect, rent pending the outcome of the appeal. They agreed to pay this sum into an account to be administered by the solicitors respectively for the claimants and for the opponent. I have been informed, and it has not been disputed, that the claimants were paying the mortgage payments to the Westpac Banking Corporation until December 1990 at which time their payments ceased. If the claimants are prepared to pay rent henceforth they should, in my opinion, be required to pay rent back to the day in December 1990 when the mortgage payments ceased. The result is that the following orders should be made: 1. Subject to 0.3 below, stay execution of the judgment entered by Young J on 7 March 1991 until the determination of the appeal or any further or other order of a Judge of Appeal; 2. Expedite the hearing of the appeal, category B, to the intent that the appeal will be heard within approximately two months on a day so far as possible convenient to counsel for both parties; 3. The order of stay in 1 above is conditional upon the claimants, within twenty-eight days of the order, paying into a bank account to be jointly administered by the solicitors for the claimants and for the opponent, a sum equivalent to $120 a week from December 1990 to date and thereafter until the disposal of the appeal; 4. Order that the solicitors be authorised jointly from such fund, to pay to the Westpac Banking Corporation the arrears of the mortgage payments of the opponent in respect of the subject premises; 5. Order written submissions in the appeal; 6. Order that the costs of the motion for the stay be costs in the appeal; and 7. Liberty to either party to restore the matter to the list of the Court on two days' notice to the other. I make the last mentioned order so, if any defaults arise in respect of payment of rent or any back payment, or any difficulties arise in respect of the payment of the mortgage arrears, the matter can be brought back to the Court for further orders. Counsel for Claimant: I Wales Solicitors for Claimant: Kell Heard McEwan and Lough Counsel for Opponent: GP Walker Solicitors for Opponent: Crossin Power Haslem