• Lawyers in Sydney
• Lawyers in Melbourne
• Lawyers in Brisbane
• Lawyers in Perth
• Family lawyers
• Employment lawyers
• Criminal lawyers
• Wills and estates lawyers
• Find a lawyer

What happened

In Stephenson v Marer [2025] QCA 215, the Queensland Court of Appeal dealt with an urgent application made during a pending appeal. Gerard Stephenson and Katerina Kruskova sought a stay of enforcement possession and demolition activities concerning 572 Tallebudgera Creek Road, Tallebudgera Valley. The judgment is a short ruling by Mullins P dated 5 November 2025. The supplied text has no numbered paragraphs, so references below use the dates and wording in the judgment rather than paragraph numbers.

The underlying trial division judgment, entered on 23 July 2025, was against the appellants and a related company. It ordered recovery of possession by the mortgagee and included judgment for debt. The property was owned by the company and was where the appellants resided. A stay application was filed in the trial division the following day. An enforcement warrant was issued on 11 August 2025.

The appeal itself had encountered a procedural issue: the original notice of appeal was, in Mullins P’s words, in a form that “could never have been pursued in its terms”. On 8 October 2025, an application by the respondents to strike out the appeal for want of prosecution was adjourned, and the appellants were given an opportunity to amend their notice. An amended notice was filed on 3 November 2025. Mullins P called it “an improved version” and made directions for further steps in the appeal. The judgment does not say that the appeal was finally ready for hearing or determine its merits.

Meanwhile, the respondents took possession on 12 October 2025, with assistance from the court bailiff and police. A further application for a stay of the enforcement warrant was resolved by consent in the trial division on 30 October 2025. That order allowed Katerina Kruskova and other named people to attend between 9 am and 1 pm on 1 November to collect their respective chattels. It allowed the respondents, after 1 pm, to remove and dispose of any property remaining, whether or not the appellants owned it. The order did not permit Mr Stephenson to attend under that arrangement.

The judgment records differing accounts of what happened at the property on 1 November. It says that Ms Kruskova attended and that some items were collected, but that the appellants did not obtain everything they wanted returned. Mullins P did not resolve the factual disagreement. Instead, the judge considered that determining those contested matters would not change the position concerning recovery of the real property.

On 5 November, the appellants brought the urgent application in the Court of Appeal. Mullins P refused it. The respondents’ solicitor undertook to pass on to Mr Marer a list, if provided by 4 pm on 6 November, of items belonging to the appellants or people they had permitted to occupy the property. Mr Marer would then ascertain whether the items remained and, if they did, make them available at the entrance for collection forthwith. The appellants were ordered to pay the respondents’ costs of the application, fixed at $5,000.

Why the court decided this way

The central stated reason was lack of utility. Mullins P said: “There is therefore no utility, even if there was jurisdiction, for the Court of Appeal to accede to the urgent application”. The court’s reasoning was tied to the particular procedural and factual position: possession had already been taken, the trial division had addressed a related stay application by consent, and the judge considered the appellants’ prospects of reversing the possession judgment very poor.

The judgment explains the prospects assessment by referring to the debt judgment accompanying the possession judgment. Some allegations made in the trial division might, if successful on appeal, reduce the amount of the judgment debt. But Mullins P considered it apparent from the respondents’ material and the statement of claim that Mr Marer, as registered mortgagee, would be owed at least some amount secured by the mortgage. The judge said this made it “virtually impossible” for the appellants to appeal successfully against recovery of possession.

That is a case-specific assessment made to resolve the urgent application. It is not a final decision on the appeal, nor does the judgment explain the legal basis or evidence for each allegation raised in the underlying proceeding. It also does not decide whether the appellants could succeed on an argument about the amount of debt. The judgment expressly recognises that some allegations, if successful, might reduce the judgment debt, while treating that possibility as insufficient to give utility to the requested stay of possession.

Jurisdiction was another consideration, but it was not finally decided. Mullins P said it was arguable that there was no jurisdiction concerning the taking of possession because that had already occurred. The trial division had also already been asked to stay enforcement of the warrant, and that application had been resolved by consent on 30 October. The phrase “even if there was jurisdiction” is important: the court treated lack of utility as sufficient to refuse the application without determining the jurisdiction issue.

The remaining dispute concerned chattels. The accounts of the 1 November attendance differed, and the appellants had not collected everything they sought. Mullins P considered there was “no point” pursuing the contested matters because they would not alter the fact that Mr Marer was entitled to have recovered possession. The solicitor’s undertaking addressed a limited practical aspect of the dispute by providing a process for identifying items that might remain. It did not undo the earlier possession or grant a stay.

Before and after state of the law

The judgment does not set out a general legal test governing stays of enforcement. It cites no statute, rule, or earlier judgment. Accordingly, it is not possible from this text alone to give a sourced account of the legal position before the decision, or to say that the case changed the law afterwards.

What the judgment does provide is a record of how Mullins P approached this particular urgent application. The judge considered the apparent prospects of the challenge to possession, whether the requested relief would have utility, the fact possession had already occurred, and an arguable question about the Court of Appeal’s jurisdiction. The decision is therefore useful as an example of the court’s stated reasoning in the circumstances before it, but the text does not establish a new general rule.

The ruling also illustrates the distinction between a pending appeal and interim relief pending that appeal. The fact that the appeal remained on foot did not, by itself, lead the court to grant the requested stay. The judgment’s reasoning focused on whether the specific order sought could serve a useful purpose, given the state of possession and the judge’s assessment of the possession grounds. That description should not be expanded into a universal proposition about the effect of an appeal: no general rule is articulated in the judgment.

Nor does the ruling determine the legal consequences of the 30 October consent orders beyond the facts recorded. It says the trial division resolved the stay application by consent and describes the access window and authority concerning remaining property. It does not analyse the scope, validity, or enforceability of those orders as a separate legal issue.

Key passages with plain-English translation

“The notice of appeal was in a form that could never have been pursued in its terms and required amendment if the appeal was to proceed.”
In plain English, the original appeal document had a significant form or content problem, and it needed to be changed for the appeal to continue in the form contemplated. The judgment does not specify the defect or explain the applicable procedural rule.

“It is certainly an improved version on the original notice of appeal.”
Mullins P considered the amended notice better than the original. That observation does not mean the judge decided that every ground was valid or that the appeal would succeed.

“my assessment is their prospects of challenging the recovery of possession by the respondents of the property are very poor indeed.”
This was the judge’s assessment of the appeal against recovery of possession when considering the urgent application. It was not a final judgment on the appeal.

“There is therefore no utility, even if there was jurisdiction, for the Court of Appeal to accede to the urgent application.”
The judge considered that granting the requested stay would not serve a useful purpose in the circumstances, even if the Court of Appeal had power to grant it. The court therefore did not need to decide jurisdiction conclusively.

“There are issues that remain about what happened on 1 November 2025, but there is no point in my pursuing the contested matters as it will not alter the fact that Mr Marer is entitled to have recovered possession of the real property.”
The judge acknowledged the disagreement about the collection of belongings but did not determine who was right about that day’s events. The reason given was that resolving those disputes would not affect the possession outcome relevant to this application.

The undertaking about a list of items supplied by 4 pm on 6 November 2025.
In practical terms, the solicitor promised to pass such a list to Mr Marer so he could check whether the items remained and, if so, make them available at the property entrance. The undertaking was limited to that process and did not amount to a general ruling about ownership of disputed items.

What fact patterns trigger this precedent

The decision concerns a particular combination of circumstances: an appeal from a possession and debt judgment; an urgent stay application made after possession had already been taken; a related stay application previously resolved by consent in the trial division; and disputes about belongings remaining at the property. The Court of Appeal considered the apparent prospects of challenging possession and whether a stay would have utility in that setting.

It may be relevant to legal analysis where a court is asked for urgent interim relief during a pending appeal and the underlying enforcement step has already occurred. In this judgment, the timing mattered: the respondents had taken possession on 12 October, while the new application was made on 5 November. The earlier consent orders about chattels also formed part of the procedural background.

The case should not be treated as establishing that a stay is unavailable whenever possession has occurred, or whenever a mortgagee claims secured debt. The judgment does not state such broad rules. It records Mullins P’s assessment of the specific appeal and application before the court. It also leaves open the possibility that some allegations could reduce the debt, while considering that at least some secured amount would remain.

The ruling is also not a determination of the parties’ competing accounts of the 1 November collection. The judgment expressly declines to pursue those contested facts because, in the judge’s view, they would not alter the relevant possession position. Its treatment of the chattels issue is therefore limited to the solicitor’s undertaking.

How later courts have treated it

The supplied judgment contains no discussion of any later decisions, and it was delivered on 5 November 2025. No later judicial treatment can be established from the text provided. It cites no earlier authorities either, so there are no precedent relationships to extract from this source.

The judgment’s narrow procedural setting should be kept in view when considering any later reference to it. Mullins P refused an urgent application and gave reasons tied to utility, the apparent prospects of challenging possession, the prior consent orders, and the fact possession had occurred. The decision did not determine the underlying appeal or formulate a general test for stays. Any claim that a later court followed, distinguished, or otherwise treated this decision would require a later source not included here.

Still-open questions

The substantive appeal remained unresolved in this judgment. The text does not provide the amended grounds of appeal, identify the precise allegations foreclosed by the trial division judgment, or set out the evidence supporting the debt calculation. It therefore does not show which issues might affect the amount of the judgment debt or how those issues would be decided.

The judge’s jurisdiction concern also remained open. Mullins P described it as arguable that the Court of Appeal lacked jurisdiction in relation to possession already taken, but refused the application on utility grounds without resolving that point. The text does not set out the parties’ jurisdiction submissions or the legal provisions on which they relied.

The judgment does not resolve what happened during the 1 November attendance, whether all items were still on the property, or whether any items had been removed or disposed of. The undertaking offered a process for checking a list of items, but the judgment does not report what happened after the deadline or whether the items were ultimately collected.

Finally, the text does not explain the legal basis for the costs amount or provide a broader costs analysis. It records only the order requiring the appellants to pay $5,000 for the application. Those questions should not be answered by inference from this short ruling.

This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.