Kellas-Sharpe & Ors v PSAL Limited

[2012] QCA 135

Queensland Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Stay of execution
3. › Second application for stay
4. › Whether significant change of circumstances since first application refused
5. › Whether new facts justified revisiting earlier decision
1. Practice and Procedure
2. › Stay of execution
3. › Mortgagee's right to possession
4. › Balance of convenience
5. › Whether mortgagee entitled to exercise security rights pending appeal
1. Practice and Procedure
2. › Interlocutory applications
3. › Repeated applications
4. › Principle that party cannot re-litigate battle already fought absent significant change of circumstances

Quick Take

A party seeking a second stay of execution must demonstrate a significant change of circumstances or awareness of facts that could not reasonably have been known at the time of the first application. Evidence that was available but not adduced at the first hearing does not constitute a significant change of circumstances. A mortgagee is prima facie entitled to exercise its security rights pending appeal, even where the borrower contends the interest rate clause is a penalty.