NSW Caselaw
New South Wales Court of Appeal
CITATION: Kowalczuk v Accom Finance Pty Ltd [2007] NSWCA 225
HEARING DATE(S): 20 August 2007
JUDGMENT DATE: 20 August 2007
JUDGMENT OF: Campbell JA
EX TEMPORE JUDGMENT DATE: 20 August 2007
DECISION: (1) Orders made on 17 July 2007 in lower court proceedings stayed pending determination of appeal.; (2) Costs of stay application are costs in the appeal.
CATCHWORDS: APPEALS - stay of judgment below pending hearing of appeal - principles on which stay should be granted - where judgment below ordered enforcement of mortgage security by judicial sale - exception to principle that order for judicial sale only stayed where mortgagor repays all principal and interest to mortgagee or into court - where existence of power of sale under attack - onus of proof in application for stay - balance of convenience
LEGISLATION CITED: Contracts Review Act 1980 Trade Practices Act 1974 (Cth)
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Ferro Corporation (Aust) Pty Limited v International Pools (Aust) Pty Limited (1993) 30 NSWLR 539 CASES CITED: Harvey v McWatters (1948) 49 SR (NSW) 173 Inglis v Commonwealth Trading Bank of Australia (1972) 126 CLR 161 Parist Holdings Pty Ltd v Perpetual Nominees Ltd [2006] NSWSC 599
Edward John Kowalczuk - First Claimant PARTIES: Mars Pty Ltd - Second Claimant Accom Finance Pty Ltd - First Opponent Samir Dalla - Second Opponent
FILE NUMBER(S): CA 40514/07
M R Gracie - Claimant COUNSEL: M Young - First Opponent B Carruthers - Second Opponent
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