FAIREY v FAIREY (Eq No 1177/96); FAIREY v FAIREY (CA 40780/98) [1998] NSWCA 279

FAIREY v FAIREY (Eq No 1177/96); FAIREY v FAIREY (CA 40780/98) SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

GILES JA 9 December 1998

[1998] NSWCA 279

Giles JA. On 14 September 1998 Santow J delivered judgment in these proceedings. His Honour held that a claim giving rise to equitable damages in relation to what has been called the house lot had been made out, and in due course orders were made whereby the defendant was ordered to pay to the plaintiff approximately $97,000, being the damages plus interest, and to pay the plaintiff's costs. Orders were also made disposing of a cross-claim and for the costs of the cross-claim.

The defendant appealed, filing a notice of appeal without appointment on 9 October 1998. The plaintiff took steps to execute the judgment for the $97,000. The defendant then moved by notice of motion filed on 13 November 1998 for relief of two kinds, first, discharge of an order made in May 1998 restraining certain dealings with what has been called lot 1, and secondly, a stay of execution of the judgment for the approximately $97,000 and of the order for costs once the costs were assessed.

The defendant's application came before Austin J. His Honour ordered, apparently pursuant to Pt 12 r 2 of the Rules, that the proceedings, or perhapssome part of the proceedings, be removed to the Court of Appeal. I doubt that that was appropriate. While in some circumstances it is appropriate to move the Court of Appeal for a stay of execution, the application had been made in the proceedings in the Equity Division, it was more than an application for a stay of execution, and it could have been dealt with in that Division. It is by no means clear to me that the purported removal to the Court of Appeal fell within Pt 12 r 2, and certainly his Honour did not state the question to be decided or address satisfaction that special circumstances existed. Had the defendant wished to move the Court of Appeal for a stay of execution an application in the appeal could have been made, but no such application was filed.