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[2026] NSWCA 197
procedural. Leave was granted to file the notice of motion in the specified form. The motion dated 9 September 2026 was dismissed with costs, and the application to stay the Court's 3 September 2026 orders...
The Court of Appeal refused to pause enforcement of its earlier orders while the applicants pursued special leave in the High Court. The governing test required exceptional circumstances. The Court considered the proposed special leave grounds weak and the claimed refinancing too uncertain to justify a delay. It also accepted that continued interest and sale costs were likely to cause further loss to the lender. The motion was dismissed with costs.
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2,309 words · generated 08/10/2026
This judgment concerns a request to pause enforcement of earlier Court of Appeal orders while the applicants pursued an application for special leave to appeal to the High Court. The Court identified its earlier decision as Events by Lush Pty Ltd v Capital Securities Mortgages Pty Ltd [2026] NSWCA 180, in which it had dismissed the applicants' application for leave to appeal on 3 September 2026 [1].
1 cited instrument linked from this judgment.
Following that decision, the applicants sought urgent directions about a stay application. They then emailed a notice of motion on 9 September 2026 seeking to stay enforcement of possession orders concerning properties in Rosemeadow and Ambarvale. They also sought to prevent execution of any writs of possession and, alternatively, to pause enforcement long enough for valuations and refinancing or sale arrangements to progress [2]–[3].
The applicants' central submission was that enforcement could lead to a sale that would be practically irreversible and might substantially prejudice or render nugatory their proposed High Court application [5]. They said a comprehensive refinancing package might be completed within 14 days, subject to valuations, serviceability, an exit strategy and lender requirements [6]. They submitted that refinancing could allow them to retain the properties while paying a substantial amount towards the secured debt. They also referred to renovation work at the Ambarvale property and the possibility of a voluntary sale [7]–[9].
The evidence was procedurally and substantively important. Although the applicants had foreshadowed affidavit evidence, they did not file it within time [4]. An affidavit from Ian Perry was served at 10:00 pm on 10 September 2026. It repeated assertions in the written submissions and attached a document said to be a special leave application. The Court proceeded on the assumption that the High Court Registry had accepted that document for filing, although the judgment says that acceptance was unclear [10]. The applicants later included further broker material in their reply without leave [19].
The respondent opposed a stay. It relied on the debt, interest continuing to accrue, the properties' valuations and the history of earlier refinancing assertions [13]–[17]. It said that the debt was $1,961,703 as at 4 February 2026, while the only valuation evidence before the Court put the combined value of the properties at $2,085,000 [16]. The respondent also submitted that further delay would likely increase its losses because of accruing interest and sale costs [17].
The Court granted leave for the applicants to file the notice of motion in the form provided by email, but dismissed the motion with costs and refused a stay [28]. Those are distinct procedural orders: permission to file the specified motion did not mean that the substantive request for a stay succeeded.
The Court applied the stay principles stated in Reinhart v Welker and Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd. It said that exceptional circumstances must be shown to justify a stay pending determination of a special leave application [20]. It also set out the relevant considerations by reference to 183 Eastwood Pty Ltd v Dragon Property Development & Investment Pty Ltd: prospects of obtaining special leave, the balance of convenience, whether refusal might render the application nugatory, and whether granting a stay might cause loss to the respondent [21].
The Court emphasised the distinction between the prospects of obtaining special leave and the prospects of succeeding in an appeal if special leave were granted. The question was whether the circumstances, taken together, gave sufficiently significant prospects of obtaining special leave to warrant a stay. It also noted that a lack of substantial prospects would not necessarily be fatal in every case, because other factors might sometimes justify a stay [21]. Its assessment of special leave prospects was described as an impressionistic exercise, citing Bryant v Commonwealth Bank of Australia [22].
On the merits of this stay application, the Court did not regard the proposed special leave grounds as strong. It said the grounds closely corresponded to arguments already made to the Court of Appeal in support of leave to appeal. Those arguments had been rejected as raising no issue of principle beyond the merely arguable [23]. The Court therefore concluded that the applicants did not have substantial prospects of success in the special leave application.
The applicants' reply raised alleged discrepancies in a notice under s 57(2)(b) of the Real Property Act 1900 (NSW) and in the respondent's enforcement steps. The Court considered those matters despite noting that they had not been raised before the primary judge or in the principal appeal proceedings [18], [24]. It was not satisfied that they raised a real question about the validity of the notice or enforcement steps, and they did not alter its view that exceptional circumstances had not been shown [24].
The balance of convenience independently favoured refusal. The Court compared the debt of $1,961,703 as at 4 February 2026 with the only valuation evidence before it, which gave a combined property value of $2,085,000 [25]. It accepted the respondent's submission that interest had continued to accrue since 4 February 2026 and that sale costs would also arise. On that evidence, a further stay was likely to cause further loss to the respondent [25].
The refinancing evidence did not counterbalance that concern. The applicants themselves described the proposed refinancing as subject to outstanding valuations, serviceability, an exit strategy and lender requirements. The evidence did not explain how those conditions would be satisfied. The broker's letter referred to an unidentified lender, an unidentified amount and unidentified terms, while anticipating formal approval and settlement within 14 days [19], [26]. The Court described the evidence as tentative and lacking cogency, gave it little weight, and found no reasonable basis to conclude that the refinancing would occur even if a stay were granted [26].
The judgment does not purport to establish a new general rule for stay applications. It applies an existing test: exceptional circumstances must be shown for a stay of Court of Appeal orders pending a High Court special leave application [20]. The source of that requirement is identified as Jennings Construction, with the principles also stated through Reinhart [20].
The judgment's account of the relevant considerations is drawn from 183 Eastwood. Those considerations include the special leave prospects, the balance of convenience, possible nugatory effect if a stay is refused, and possible loss to the respondent if a stay is granted [21]. The Court also records that the factors can overlap, because nugatory effect and respondent loss may be aspects of the balance of convenience [21].
The decision adds no stated change to that framework. Its contribution in this case is its application to the evidentiary record: weak proposed special leave grounds, an accruing debt, a narrow gap between the debt and the available combined valuation, and refinancing evidence that omitted material details [23]–[26]. The judgment does not say that refinancing evidence must always contain any particular list of documents or satisfy a fixed evidential threshold. Rather, it explains why the particular evidence presented here received little weight.
Nor does the judgment decide the merits of the underlying possession or debt proceedings afresh. It refers to the earlier leave decision and assesses whether the applicants had shown grounds to suspend enforcement while the High Court special leave process was pending [1], [20]–[27]. It should therefore be read as a decision about a stay application on its stated record, not as a general ruling on the validity of the debt, the possession orders, or the statutory notice.
At [20], the Court says the stay test requires “exceptional circumstances”. In plain English, the applicants had to show more than an ordinary reason for delaying enforcement. The Court treated this as the governing threshold, drawing on Jennings Construction and Reinhart.
At [21], the Court identifies several considerations: prospects of obtaining special leave, the balance of convenience, possible nugatory effect if enforcement proceeds, and potential loss to the respondent if a stay is granted. In practical terms, the Court considered both the applicants' concern that a sale could undermine their High Court application and the lender's concern that delay could increase its financial loss.
At [21]–[22], the judgment clarifies how it approached special leave prospects. It distinguished the chance of obtaining permission to appeal from the chance of winning an appeal after permission is granted. It also described the assessment as impressionistic, meaning the Court assessed the prospects in context rather than by applying a mechanical calculation.
At [23], the Court says it did not regard the special leave grounds as strong. It considered them closely aligned with arguments already made in the earlier leave application, which had not raised an issue of principle beyond the merely arguable. This was the Court's assessment for the stay application, not a determination by the High Court of the special leave application itself.
At [24], the Court addresses new complaints about the s 57(2)(b) notice and enforcement steps. It notes that these matters had not been raised in the proceedings before the primary judge or in the principal Court of Appeal proceedings. The Court did not find that they raised a real question about validity. This passage explains why the newly raised material did not change the stay assessment.
At [25], the Court states that the balance of convenience favoured refusing a stay. It points to the debt, accrued interest, sale costs and the comparative property valuation. In plain English, it accepted that further delay could worsen the lender's position, while the available evidence did not establish that a short delay would reliably produce refinancing.
At [26], the Court describes the refinancing evidence as “tentative and lacking cogency”. The broker's prediction was not backed by detail about the lender, amount, terms or how the outstanding conditions would be met. The Court consequently gave the material little weight. This finding concerns the evidence in this application, rather than a general conclusion about the feasibility of refinancing.
The judgment is most directly relevant to applications seeking to stay Court of Appeal orders while a special leave application to the High Court is pending. It addresses the exceptional-circumstances threshold and the factors relevant to that decision [20]–[21].
The fact pattern here involved possession orders over secured properties, a claimed risk that enforcement and sale would be practically irreversible, and a proposed refinancing said to be close to completion [3], [5]–[9]. The Court's analysis may be informative where an applicant relies on proposed refinancing to support a stay, especially where the proposal remains subject to valuations, serviceability, lender requirements or other conditions [6], [26].
The decision also speaks to cases where a respondent relies on the continuing cost of delay. Here, the Court considered an identified debt, continuing interest, property valuations and sale costs [16]–[17], [25]. Those matters formed part of the balance-of-convenience assessment, alongside the applicants' argument that enforcement might undermine their High Court application [5], [21].
Its relevance should be kept within those limits. The judgment does not establish that all possession enforcement must be stayed or refused in similar circumstances. Nor does it determine the legal validity of the s 57(2)(b) notice or the enforcement steps as a final merits issue. It records only that the new complaints did not persuade the Court that there was a real question warranting a stay in this proceeding [18], [24].
The supplied judgment contains no information about later judicial treatment of this decision. It was handed down on 16 September 2026, and the text does not cite any later judgment considering it. A later treatment history therefore cannot be established from this source alone.
The cases it itself refers to are earlier authorities, not later treatment. Jennings Construction and Reinhart are identified as sources for the exceptional-circumstances test [20]. 183 Eastwood is used to set out the relevant factors in greater detail [21], while Bryant is cited for the impressionistic nature of assessing special leave prospects [22]. The judgment also refers back to the earlier proceeding between these parties, Events by Lush Pty Ltd v Capital Securities Mortgages Pty Ltd [2026] NSWCA 180 [1].
Accordingly, the judgment supports an account of how this Court applied existing authorities on 16 September 2026. Whether subsequent courts have followed, distinguished or otherwise treated its reasoning is outside what the supplied text establishes.
The judgment does not determine the High Court's eventual response to the special leave application. Its assessment that the grounds were not strong was made for the stay application and should not be treated as a decision by the High Court [23].
The judgment also does not resolve the underlying new complaints about the s 57(2)(b) notice or enforcement steps. It says they were not raised in the earlier proceedings and that the Court was not satisfied they raised a real question about validity [18], [24]. The decision is therefore not a full determination of those complaints on their merits.
The refinancing evidence left factual matters unexplained, including the identity of the lender, the amount and terms of proposed finance, the valuation results, serviceability and the exit strategy [19], [26]. The Court concluded that the evidence before it was insufficiently cogent, but did not decide whether refinancing might later become available on different or more complete evidence.
The judgment also does not prescribe how much detail refinancing evidence must contain in every stay application. Its reasoning is specific to the material before it. The Court's stated conclusion was that this evidence did not provide a reasonable basis to expect refinancing to occur, even if a stay were granted [26].
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Events By Lush Pty Ltd v Capital Securities Mortgages Pty Ltd (No 2) [2026] NSWCA 197
Hearing dates: On the papers
Date of orders: 16 September 2026
Decision date: 16 September 2026
Before: Payne JA; Price AJA
Decision: (1) Leave is granted to the applicants to file the notice of motion, in the form of the motion provided by email dated 9 September 2026, seeking a stay of enforcement of the orders made by this Court on 3 September 2026.
(2) Dismiss the motion dated 9 September 2026 with costs.
(3) Refuse the application for a stay of the orders made by this Court on 3 September 2026.
Catchwords: CIVIL PROCEDURE — application for stay of orders for possession pending determination of special leave application to the High Court — whether sufficient prospect of obtaining special leave — whether balance of convenience favours a stay — application for stay dismissed
Cases Cited: 183 Eastwood Pty Ltd v Dragon Property Development & Investment Pty Ltd [2023] NSWCA 146
Bryant v Commonwealth Bank of Australia [1996] HCA 3; 70 ALJR 306
Events by Lush Pty Ltd v Capital Securities Mortgages Pty Ltd [2026] NSWCA 180
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681; [1986] HCA 84
Reinhart v Welker (2012) 83 NSWLR 347; [2012] NSWCA 1
Category: Consequential orders
Parties: Events by Lush Pty Ltd (First Applicant)
Christine Anne Perry (Second Applicant)
Ian Robert Perry (Third Applicant)
Capital Securities Mortgages Pty Ltd (Respondent)
Representation: Counsel:
Clare Perry (by leave for the Applicants)
C Bannan (Respondent)
Solicitors:
QBM Law (Respondent)
File Number(s): 2026/00252345
Publication restriction: Nil.
THE COURT: On 3 September 2026, the Court dismissed an application for leave to appeal by these applicants: Events by Lush Pty Ltd v Capital Securities Mortgages Pty Ltd [2026] NSWCA 180. Familiarity with those reasons is assumed.
On 3 September 2026, following delivery of judgment the applicants sought urgent directions concerning an application for a stay pending an application for special leave to appeal the decision of this Court to the High Court of Australia. On the same day, directions were made setting a timetable for materials related to a stay application.
On 9 September 2026, in accordance with the timetable, a notice of motion by the applicants was sent by email to the chambers of the presiding judge seeking the following orders:
“1. Until the determination of the Applicants’ application for special leave to appeal to the High Court of Australia, or further order, the execution and enforcement of the orders for possession in respect of:
- [redacted], Rosemeadow; and
2. [redacted], Ambarvale,
be stayed.
2. Any writ of possession issued in respect of either property be stayed and not executed until further order.
- Alternatively to Orders 1 and 2, enforcement be stayed for such period as the Court considers appropriate to permit completion of the scheduled property valuations and determination of the Applicants’ current refinancing and/or sale arrangements.
4. The Applicants have liberty to apply on short notice.
5. Costs be reserved.”
The applicants submitted that unless enforcement of the orders of this Court are stayed, “there is a real risk that the writs/orders for possession will be executed” and sale of the properties completed. This was described by the applicants as “practically irreversible” and a matter which would “substantially prejudice and potentially render nugatory” the applicants’ proposed appeal to the High Court of Australia.
The applicants submitted that there has been a material change in circumstances since the determination of the application for leave to appeal by this Court on 3 September 2026. The applicants submitted that they were now pursuing a “comprehensive refinancing package” asserted to be capable of completion “within the next 14 days”, subject to “outstanding valuations, serviceability, exit-strategy, and lender requirements.”
The applicants submitted that this possible refinancing, if it were to proceed, would allow the applicants to retain both properties while providing a “substantial sum directly towards the discharge of the Respondent’s secured indebtedness”. The applicants submitted that this approach would allow the respondent to recoup “greater costs than it would under a forced mortgage sale…”. Valuations of the securitised properties were said to have been scheduled for 11 and 14 September 2026.
The applicants additionally noted in writing that the property they owned in Ambarvale (the Ambarvale property) was in the final stages of renovation. It was submitted that the applicants would be in an improved position to pursue a voluntary sale if the refinancing they were seeking was completed.
The applicants submitted that the balance of convenience strongly favoured “maintaining the status quo” given that enforcement proceedings are “absolute and irreversible”.
On 10 September 2026, at 10:00pm the applicants served the affidavit of Mr Ian Perry dated 9 September 2026. That affidavit repeated many of the assertions made in the applicants’ written submissions. That affidavit annexed a document said to comprise an application for special leave to the High Court, although it is not clear this document had been accepted by the High Court Registry. We will nonetheless proceed as if it has been so accepted for filing. That affidavit also annexed some evidence regarding council issues, renovations of the Ambarvale property, and steps taken towards the sale of the Ambarvale property.
The respondent submitted that, contrary to the submission of the applicants, neither this Court nor the court below failed to address any relevant material. This Court had not required proposed defences to be established, nor was there a failure to address the “defence” identified by the second applicant.
The respondent submitted the balance of convenience favoured dismissal of the application for a stay.
The respondent submitted the recent evidence advanced to support the contention that refinancing of the applicants’ two secured properties is imminent must be approached with caution. The respondent submitted this contention had been advanced by the applicants in varied forms since 10 September 2025. The respondent noted that on 16 March 2026 Ms Perry swore the applicants were preparing a property for sale in order to refinance the loan.
The respondent submitted that the evidence provided regarding refinancing did not meet the requisite standard (Practice Note SC CL 6 – Possession List (at [28]), GE Personal Finance Pty Ltd v Smith [2006] NSWSC 889 at [13] and [21] to [23]). The respondent submitted that “[t]here is no material change in the position of the applicants. The high point of the latest evidence is an assertion that a refinance is in ‘advanced stages’ and a belief that a refinance may be possible within 14 days.” The respondent noted that by the evidence of the applicants the refinancing is still subject to valuations and an assessment of the applicants’ ability to service any refinanced loan. It was noted, in that respect, referring to unchallenged evidence before this Court (relating to the leave application), that no payments have been made on the present loan since the first interest charge which was withheld out of the settlement on the loan on 1 May 2025. The respondent reiterated the finding of the primary judge in the proceedings below that the first applicant had advanced a defence for the ulterior motive of obtaining a de facto stay of proceedings (as opposed to mounting a bona fide defence).
The respondent submitted that in the course of these proceedings, the applicants have already obtained a de facto stay for more than 8 months for the first applicant; and more than 5 months for the second applicant.
The respondent pointed out that the amount of the debt outstanding as at 4 February 2026 was $1,961,703. The only evidence of valuations obtained by Capital Securities disclosed that the combined value of the two properties is $2,085,000.
The respondent submitted that, given that interest has continued to accrue since 4 February 2026 and given the costs of selling the properties, any further stay is likely to result in further losses for the respondent.
The applicants’ reply submissions advanced new arguments and referred to new material which was not part of the evidence before this Court or the primary judge. Those arguments allege discrepancies in the notice issued (pursuant to s 57(2)(b) of the Real Property Act 1900 (NSW)) and in the steps taken by the respondent to enforce the debt. These arguments had not been made in the proceedings before the primary judge or in this Court in the principal proceedings.
The applicants submitted, without leave, further evidence about the “refinancing” of the properties. A letter from the applicants’ mortgage broker was enclosed. That letter stated that the broker was “actively and directly liaising” with an (unidentified) lender in relation to a “refinance” (of an unidentified amount on unidentified terms). No details of the “outstanding valuations, serviceability, exit-strategy, and lender requirements” were given but the broker asserted that he anticipated “that formal approval will issue and the matter will proceed to settlement within fourteen (14) days of the date of this letter”.
The test for a stay of this Court’s own orders pending the determination of an application for special leave to the High Court is stated in Reinhart v Welker (2012) 83 NSWLR 347; [2012] NSWCA 1 at [47] (Bathurst CJ, Beazley P and McColl JA agreeing). This Court should apply the principles identified by Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681 at 684-685; [1986] HCA 84. That test requires that exceptional circumstances should be shown to warrant the grant of a stay pending the determination of a special leave application.
In 183 Eastwood Pty Ltd v Dragon Property Development & Investment Pty Ltd [2023] NSWCA 146, Simpson AJA reaffirmed the relevant legal principles in greater detail as follows:
“[29] The principles applicable to an application for stay of execution of a judgment of the Court of Appeal pending the outcome of an application for special leave to appeal to the High Court have most recently been stated, pithily, by Kirk JA in 123 259 932 Pty Ltd v Cessnock City Council (No 2) [2023] NSWCA 89 (‘Cessnock’). The starting point is that exceptional circumstances must be shown: Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [No 1] (1986) 161 CLR 681; [1986] HCA 84 (‘Burgundy Royale’); Obeid v The Queen [2016] HCA 9; (2016) 90 ALJR 447; Rinehart v Welker (2012) 83 NSWLR 347; [2012] NSWCA 1 (‘Rinehart’). Significant factors in that respect are:
(i) whether the applicant has substantial prospects of success in the special leave application (as distinct from the prospects of success in any appeal for which special leave might be granted);
(ii) where the balance of convenience lies;
(iii) whether, if a stay is refused, the application for special leave will or might be rendered nugatory; and
(iv) whether a grant of a stay will or might cause loss to the respondents.
The third and fourth considerations may be seen as aspects of the second, the balance of convenience.
[30] A conclusion that the special leave application has ‘substantial prospects of success’ on the special leave application does not depend on a conclusion that a grant of special leave is likely. The overall question is whether, taking account of all the circumstances, there are sufficiently significant prospects of obtaining special leave to warrant the grant of a stay: Cessnock at [10].
[31] Failure by an applicant to establish substantial prospects of obtaining special leave is not necessarily fatal to the application for stay: Rinehart at [49]. In some cases factors other than the prospects of success on the special leave application may warrant the grant of a stay.”
Assessing prospects of obtaining special leave is an impressionistic exercise: Bryant v Commonwealth Bank of Australia [1996] HCA 3; 70 ALJR 306 at 308.
As far as the application for special leave to appeal to the High Court is concerned, we do not regard any of the grounds advanced for special leave as strong. We do not believe that the applicants enjoy substantial prospects of success in the special leave application. Those grounds seeking special leave closely correspond to arguments put to this Court seeking leave to appeal from the primary judge. Those arguments were rejected as not giving rise to any issue of principle, going beyond the merely arguable.
In reaching this conclusion we have taken into account the assertions in the applicants’ submissions in reply about alleged discrepancies in the s 57(2)(b) notice and in the steps taken by the respondent to enforce the debt. None of those matters were raised before the primary judge or in this Court in the principal proceedings. It is not clear to us that any of these new complaints raise any real question about the validity of the s 57(2)(b) notice or the steps taken by the respondent to enforce the debt. We are not satisfied that exceptional circumstances warranting the grant of a stay have been shown.
The balance of convenience also favours refusing a stay. The amount of the debt outstanding as at 4 February 2026 was $1,961,703, on which sum interest is accruing. The only evidence of valuation before the Court disclosed that the combined value of the two properties is $2,085,000. We accept the respondent’s submission that in circumstances where interest has continued to accrue since 4 February 2026 (and given the costs of selling the properties), any further stay is likely to result in further losses for the respondent.
We have taken into account the evidence of the applicants’ prospective refinancing. That evidence is tentative and lacks cogency. Having identified that any refinance will be subject to “outstanding valuations, serviceability, exit-strategy, and lender requirements”, the applicants have not addressed any of these matters in their evidence beyond conclusory assertions made by their broker about the likelihood of an unidentified financier providing the applicants with finance in an unspecified amount on unidentified terms. We give that evidence little weight. There is no reasonable basis shown to conclude that if, even a stay were granted, the suggested refinancing would occur.
The applicants have not demonstrated a sufficient basis for a stay of the orders of this Court made on 3 September 2026 pending the determination of their special leave application to the High Court.
The orders of the Court are as follows:
Leave is granted to the applicants to file the notice of motion, in the form of the motion provided by email dated 9 September 2026, seeking a stay of enforcement of the orders made by this Court on 3 September 2026.
**********
Events By Lush Pty Ltd
Capital Securities Mortgages Pty Ltd (No 2)
[2026] NSWCA 180
(1986) 161 CLR 681
(2012) 83 NSWLR 347
(2016) 90 ALJR 447
Leave was granted to file the notice of motion in the specified form. The motion dated 9 September 2026 was dismissed with costs, and the application to stay the Court's 3 September 2026 orders was refused: [28].
Dismiss the motion dated 9 September 2026 with costs.
Refuse the application for a stay of the orders made by this Court on 3 September 2026.