COLLIER v SENGOS [1993] NSWCA 68

COLLIER v SENGOS

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

Cripps JA 26 August 1993

[1993] NSWCA 68

Cripps JA. Before the Court is an application dated 26 August 1993 by Mrs Collier seeking an order staying the further execution of a writ of possession dated 25 August 1993 which has been taken out consequent upon an order for possession of this Court some time previously. Mrs Collier was one of two defendants in the original proceedings and is one of two claimants in these proceedings.

She asks that the further execution of the writ be stayed so that her motion can be heard in this Court on 30 August 1993. That motion is in the file and in it she seeks the following orders: (i) that the decision of this Court on 18 August 1993 be overturned on the ground that Mahoney JA misstated certain facts in the course of giving a decision rejecting the application for a stay and (ii) a stay of the issue of the writ of possession, and that the Court hear the matter instanter.

The question I have to determine in these proceedings, in effect, is whether I order further execution be stayed pending the hearing of Mrs Collier's application to overturn the decision of this Court on 18 August 1993. I was a member of this Court on Wednesday, 18 August 1993 when her application for a stay of execution of an order for possession made by Ireland J on 23 July 1993 was refused.

On that occasion the claimant, Mrs Collier, based her application largely upon the circumstance that she, being one of the two persons entitled to be served, had not been served in the proceedings that were heard by Ireland J.

In the reasons given by Mahoney JA, with which Sheller JA and I both agreed, a short history of the litigation between Mr and Mrs Collier, on the one hand, and Mr Sangos, on the other, was outlined. I apprehend from the affidavit I have read in these proceedings that Mrs Collier wishes to maintain that a statement made by Mahoney JA concerning an event on 3 May 1993 was not correct.