CHAN -v- BURROWES [1998] NSWCA 56

CHAN -v- BURROWES SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

STEIN JA 2 March 1998

[1998] NSWCA 56

Stein JA. This is an application for a stay pending an appeal by the appellant, Mr Augustine Chan, of orders made by Master Macready on 31 October 1997. The notice of motion was filed on 20 February this year.

The orders made by the Master related to an adjustment of the parties" property interests under the De Facto Relationships Act whereby the Master ordered the defendant/appellant to pay the plaintiff/respondent the sum of $135,000. The Master made some consequential orders charging a property at Kyle Bay for payment of that sum of money, and a further order (No 3) that, in the event that the sum of money was not paid within two months, the Kyle Bay property be sold and out of the proceeds of sale the moneys awarded to be paid to the plaintiff, be paid. The application is to stay the order for the payment of $135,000 and if necessary, order (No 3) relating to the sale of the house in order to make the payment.

It is for the party moving for a stay to satisfy the Court that a stay ought be granted. A number of reasons are relied on in support of the application. It is said — and this is particularly in relation to order (No 3) that involves the sale of the property — that if no stay is granted the appeal would be rendered nugatory. The second reason is that if themoneys, the subject of order (No 1), are paid, bearing in mind the respective means of the parties as they appear from the judgment, that those moneys, or all or part of them, may be irrecoverable in the event that the appeal is successful.

Thirdly, it is submitted that there is no prejudice to the respondent if a stay is granted to the appellant since order (No 2), which is not sought to be stayed, charges the property at Kyle Bay with the respondent's interest. Next, it is submitted that the grounds in the notice of appeal are arguable.