Appleby v Nellis [2009] NSWSC 299

Procedure - judgments and orders - enforcement of judgments and orders - application for judgment to be stayed - application dismissed


The Defendant, a judgment debtor, sought a stay to the operation and enforcement of the judgment.  The judgment was in respect of an undertaking under a Deed of Settlement and Guarantee and Indemnity which provided that on default the Defendant would consent to a judgment in favour of the Plaintiff.

One arm of the Defendants defence was that she had started seperate proceedings against the Plaintiff for damages.  She submitted also that she should be entitled to a stay if, as she contended, the Plaintiff was insolvent.

The judge was referred to Grosvenor Constructions (NSW) Pty Ltd (in admin) v Musico & Ors [2004] NSWSC 344,  but he considered that that case, in the context of the Act with which provided for a provisional, and not a final, determination of a claimant's entitlement to be paid moneys under a building contract, as being too remote to the present one. The decision was  of no assistance to the Defendant in the present case



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