Peter Newton SC, from 11 St James Hall, recently appeared for the successful Respondent, PF 473 Pty Ltd, before Gleeson JA in the NSW Court of Appeal: Qasim v PF 473 Pty Ltd [2024] NSWCA 248.

The appellant applied for a stay of execution, of orders for possession of two residential units, pending the determination of the Appellant’s appeal from a judgement given by Faulkner J on 19 July 2024: PF 473 Pty Ltd v Qasim [2024] NSWSC 874. The respondent was a lender who advanced moneys secured by a first registered mortgage over the two residential units owned by the appellant. The primary judge found there had been a default under the mortgage and the respondent was entitled to orders for possession. The appellant appealed.

The application for a stay was opposed on the basis that: (i) the notice of appeal did not raise  any “serious issues” or “arguable grounds”, and (ii) the respondent would be unfairly prejudiced from being unable to recover its loan from the sale of the units, in circumstances where the secured debt is increasing and the appellant had not offered any additional security for the increasing debt.

Gleeson JA accepted that the notice of appeal did not raise any serious issues or arguable grounds and found it would be unfair to the respondent to prevent it from recovering its secured debt where the appeal has no realistic prospects of success. Taking into account the lack of arguable grounds of appeal and the balance of convenience or hardship, Gleeson JA held that the appellant did not make out a case for an extension of a stay of execution of the judgment for possession pending the determination of the appeal.

Read the full judgement here.