Henderson v Thackray [2012] WASCA 197

Just because a borrower appeals a decision, does not mean judgment for possession will be stayed, in fact the reverse is true. Ordinarily, the successful lender is entitled to enforce a judgment for possession pending the determination of any appeal.

The court does have discretion to grant a stay, but to succeed in a stay application, the borrower has to show:

  1. There are good prospects of success in the appeal.
  2. a stay is necessary to preserve the subject matter. This is described as requiring the court to consider whether the right of appeal will be rendered nugatory if a stay is not granted.

In relation to the prospects of success, all 54 grounds of the appeal were found to be baseless. Commenting on one, the court said ‘it is factually and legally incomprehensible, and has not the slightest prospect of success’. The rest were disposed of for similar reasons.  

In relation to whether failure to grant a stay would render the appeal nugatory, the court noted: the borrowers did not require the property as a residence. Insofar, as their real complaint was that the receivers will breach their duties on the sale of the properties, there are remedies available should any breach of duty subsequently be established.

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