DJ Singh v DH Singh and Others [2017] NSWCA 234

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: DJ Singh v DH Singh and Others [2017] NSWCA 234 Hearing dates: 14 September 2017 Date of orders: 15 September 2017 Decision date: 15 September 2017 Before: Gleeson JA Decision: (1) The Court notes the undertaking given to the Court by the first and second respondents, by their counsel, that they will not, by themselves either jointly or individually, or by their servants or agents, make any distribution to any beneficiary from the estate of the late Douglas John Singh ("the deceased"), or cause to be charged or mortgaged any of the assets of the estate of the deceased (whether held beneficially or otherwise), provided that this undertaking shall not prevent the executor respondents from paying expenses incurred in the ordinary course of the administration of the estate of the deceased, including taxation, but not including the costs of the appeal proceedings or the proceedings below, until 29 days after judgment is given in both appeal proceedings 2015/319432 and 2017/156218.

(2) Confirm order 1 made by the Registrar on 4 September 2017.

(3) Dismiss the applicant's amended notice of motion dated 10 September 2017.

(4) Order that the applicant pay 85 percent of the first and second respondents' costs of the motion, including the amended motion dated 10 September 2017. Catchwords: PROCEDURE – judgments and orders – where applicant sought stay of order granting probate of a will pending the hearing of an appeal – where volume of evidence before the Court prevents displacement of presumption that appeal is arguable – whether balance of convenience favours the grant of a stay – where contracts for the sale of properties that fall into residue under the will have been completed or will soon complete – where executors will breach uncompleted contracts for sale if stay is granted – where executors have undertaken not to make any further distributions from the estate and not to pay legal costs until appeals are decided.