Ardrey v Bartlett & Ors

[2004] WASCA 256

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Stay of execution
3. › Stay pending appeal
4. › Tests for determination
5. › Whether special circumstances shown
6. › Whether stay necessary to preserve integrity of litigation
7. › Whether balance of convenience favours stay
8. › Rules of the Supreme Court 1971 (WA), O 47 r 13(1)(a), O 63 r 15(1)(a)
1. Real Property
2. › Torrens system
3. › Indefeasibility of title
4. › Title obtained pursuant to court order
5. › Whether court retains power on appeal to set aside orders and direct reconveyance
6. › Whether indefeasibility limits appellate court's plenary powers
7. › Transfer of Land Act 1893 (WA), ss 68(1), 134

Quick Take

The principles governing stay of execution pending appeal as stated in Eastland Technology v Whisson were applied. Where title to land is obtained pursuant to court orders, the Full Court's plenary appellate powers may not be limited by statutory indefeasibility of title, though this proposition was expressed by only one of three judges. The balance of convenience in stay applications may be decisively influenced by severe financial hardship to a party if the stay is granted.