NSW Caselaw
New South Wales Supreme Court
CITATION : Jowett v Kelly [2008] NSWSC 1009
HEARING DATE(S) : 27 August 2008 JURISDICTION : Equity Division Duty List
JUDGMENT OF : Brereton J
EX TEMPORE JUDGMENT DATE : 27 August 2008
DECISION : Stay granted pending appeal.
CATCHWORDS : APPEALS – STAY OF PROCEEDGINS – application by defendants to stay orders of Associate Judge made pursuant to (NSW) Family Provision Act 1982 pending appeal – where Associate Judge took adverse view of defendants' conduct of case – whether appeal has prospect of success – where Associate Judge's decision correct on evidence before him – where evidence now suggests defendants were incompetently represented and misled as to status and progress of proceedings – whether incompetence of legal representative an available ground of appeal – balance of convenience and prejudice – where declining stay could bankrupt defendant and deny viable appeal.
LEGISLATION CITED : (CTH) Family Law Act 1975, ss 79, 79A (NSW) Family Provision Act 1982
CATEGORY : Procedural and other rulings
Burgoine v Taylor (1878) 9 Ch D 1 Chouman v Margules (1993) 17 MVR 144 Clifton & Stuart (1991) FLC 92-194 Ernst v Mowbray [2004] NSWSC 1140 CASES CITED : Gorman v Gorman; Estate late Jeanette Mary Gorman [2003] NSWSC 647 Liprini v Liprini [2008] NSWSC 423 R v Birks (1990) 19 NSWLR 677 Taylor v Taylor (1978) 143 CLR 1 Wentworth v Wentworth (NSWSC, 4 September 1991, unreported, Young J) Wiblen v Ferros (1998) 44 NSWLR 518
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