› Reasonable prospects of success – unmeritorious appeal
Real property
› Mortgages
› Judgment for possession – unauthorised re-entry by mortgagor
Civil procedure
› Enforcement of judgments
› Further Property (Seizure and Delivery) Order
Quick Take
1A stay pending appeal may be refused where the appeal plainly lacks a reasonable prospect of success. Here, the appellant accepted that a subsisting judgment for possession bound him and did not challenge it, so orders enforcing that judgment against his unauthorised re-entry were not reasonably arguable as erroneous.
2Where a mortgagor unilaterally retakes possession after a judgment for possession has been executed, orders to vacate, for a further PSDO, and broad ancillary restraints on re-entry are reasonably open to the primary judge (applying Tomcsanyi v National Australia Bank Ltd [2019] WASCA 154).
3On the balance of convenience, the court gives little weight to interests that arise only from possession taken without authority and inconsistently with a court judgment. Concerns about personal property left on the land can be dealt with through ordinary enforcement procedures, such as s 100 of the Civil Judgments Enforcement Act 2004 (WA), and do not justify a court-fashioned regime under the guise of a stay.
