Davey v Herbst and Bray

[2011] ACTCA 27

ACT Court of Appeal

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Interrogate

Catchwords

1. Appeal
2. › Stay of enforcement pending appeal
3. › Discretionary considerations
4. › Balance of convenience
5. › Competing rights of parties
6. › Whether applicant demonstrated reason warranting exercise of discretion
7. › Whether irremediable prejudice likely to occur
1. Appeal
2. › Stay of enforcement pending appeal
3. › Prospects of success on appeal
4. › Assessment of arguability of grounds of appeal
1. Real Property
2. › Joint tenancy and tenancy in common
3. › Statutory presumption of tenancy in common
4. › Whether statutory provision applies to choses in action such as debts
5. › Civil Law (Property) Act 2006 (ACT), s 210
6. › Conveyancing Act 1919 (NSW), s 26

Quick Take

An applicant for a stay of enforcement pending appeal who has not taken reasonable steps to investigate available means of satisfying the judgment (such as borrowing against property equity) will not be able to demonstrate the irremediable prejudice necessary to support a stay. The question whether s 210 of the Civil Law (Property) Act 2006 (ACT) applies to choses in action such as debts remains open.