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Citation
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Judgment date
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| May 2018 |
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The court refused to stay enforcement pending appeal, finding no irreparable harm or irregular enforcement.
Civil procedure — Stay of execution pending appeal — Requirements for stay: special circumstances, irreparable harm, balance of convenience — Enforcement of possession orders — Sheriff’s execution and Order 28 rule 40 — Discretion of appellate court to respect lower court but to assess risk of injustice.
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22 May 2018 |
| April 2018 |
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Appellant proved respondent owned/controlled negligently driven bus and succeeds despite lower court's refusal to admit registration evidence.
Civil liability – motor vehicle collision – proof of ownership/control of vehicle (registration AXA 11) – production of documents and attendance under Order 38 RSC – admissibility of vehicle registration certificate – negligence and loss of dependency – effect of insurer’s settlement.
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13 April 2018 |
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Whether interlocutory applications belong to the High Court or Supreme Court of Appeal depends on their nature and timing; premature, deliberate breaches are dismissed.
Civil procedure — interlocutory applications in appeals — Order I r18 (first bring to Court below) — Order III r19 (Court seized after appeal entered) — premature filing of motions in Supreme Court of Appeal — deliberate non-compliance and refusal to waive under Order V r1.
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13 April 2018 |
| March 2018 |
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Court upholds a trial court's power to transfer sittings for security; bail pending appeal denied absent exceptional circumstances.
Criminal procedure – s73(3) transfer of proceedings – court may sit elsewhere for security; Criminal law – bail pending appeal – discretionary, requires unusual/special/exceptional circumstances or interests of justice; duty of full disclosure in affidavits.
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29 March 2018 |
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Second‑level appeal dismissed: confession and independent witness evidence upheld; no mandatory duty to read statutory defence at plea.
Criminal law — admissibility and weight of caution statements; Chisenga distinguished — presumption in Theft by Public Servant; hearsay versus direct evidence; statutory defence of reasonable belief on age — no mandatory plea‑stage notice; second‑level appeals limited to questions of law and cannot reopen sentence severity.
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29 March 2018 |
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Convictions for theft and money laundering quashed for insufficient proof of lack of legal entitlement and absence of a proven predicate serious offence.
Criminal law – Theft and money laundering – sufficiency of evidence and burden of proof; duplicity and particulars; section 201 witness-calling; money laundering requires proof of a ‘serious’ predicate offence; depositor/banker relationship and title to deposited funds.
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23 March 2018 |
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The appellant's unexplained delay and mere inadvertence did not justify condonation to appeal out of time.
Civil procedure – Appeals out of time – Condonation – "Good and substantial reasons" required – Inadvertence or unexplained delay insufficient – Court’s discretion to refuse condonation where delay excessive.
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20 March 2018 |
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Interlocutory injunction set aside where damages adequate and balance of convenience favoured realization of security.
Civil procedure – interlocutory injunctions – application of American Cyanamid guidelines; whether serious question to be tried on construction of guarantee; adequacy of damages as remedy; balance of convenience; creditor’s right to realise security unless guarantee expressly requires exhaustion of remedies (Sedam v Mwalubunju).
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20 March 2018 |
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Bail pending appeal must be decided by the "interests of justice" test; exceptional circumstances are not an absolute precondition.
Constitutional right to release and bail (s42); Bail pending appeal—governed by interests of justice, not rigid "exceptional circumstances" test; Statutory discretion under s24 Supreme Court of Appeal Act and ss355/359 Criminal Procedure Code; Three-stage enquiry for bail pending appeal (appealable issue; likelihood of success; interests of justice); Caution on reliance on call logs as proof of conspiracy.
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14 March 2018 |
| January 2018 |
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Application for stay pending appeal refused for lack of leave to appeal and absence of special circumstances; costs awarded to respondent.
Stay pending appeal – requirement for leave to appeal under Supreme Court of Appeal Act – discretionary refusal of stay; risk of injustice and prejudice test – competing interlocutory orders and abuse of process – availability of damages as alternative remedy.
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9 January 2018 |
| December 2017 |
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Application to stay assessment of damages pending appeal dismissed as premature and lacking evidence of irreparable prejudice.
Civil procedure – Stay of proceedings pending appeal – interlocutory judgment where damages to be assessed – discretion to grant stay guided by risk of injustice – applicant must show inability to recover payments or special circumstances – prematurity of application to stay assessment; appropriate remedy is stay of execution after assessment.
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20 December 2017 |
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Applicant’s direct application for interim injunction refused; must apply to court below first and consent order barred variation without fresh action.
Civil procedure – interim injunction pending appeal – requirement to apply first in the court below (Order I r 18) – leave to appeal – consent order as binding agreement not varied by summons – mortgage law – power of sale and balance of convenience.
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20 December 2017 |
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Court dismissed interim injunction to restrain bank sale due to procedural defects and weak substantive grounds.
Civil procedure – Interim injunction pending appeal – Requirement to apply first in the court below (Order I r 18) – Leave to appeal required (proviso to s.21) – Consent order binding; variation requires fresh action – Mortgage law: reluctance to restrain power of sale where mortgagor defaults.
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20 December 2017 |
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An unconditionally admitted counsel has a right of audience that can only be removed by statutory procedure; Oberem v Oberem stands until set aside.
Right of audience on admission to the bar; removal of right of audience only by statutory process; requirement for gazetting subsidiary legislation; Malawi Law Society standards; High Court/Chief Justice procedure to remove counsel’s standing; effect of Oberem v Oberem pending appeal.
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7 December 2017 |
| November 2017 |
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Court refused to adopt a 14‑day initial skeleton‑argument rule and ordered the record of appeal prepared by 15 December 2017.
Civil procedure — case management — service and timing of skeleton arguments — whether appellants must file initial skeleton arguments within 14 days — precedential value of Anglia Book Distributors decision — adoption of domestic Practice Directions versus importation of English CPR practice — preparation of record of appeal.
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1 November 2017 |
| October 2017 |
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Court allowed amendment and late filing of skeleton arguments subject to costs payable within 60 days or before the hearing.
Civil procedure – Appeals – Application to amend grounds of appeal – Application to file skeleton arguments out of time – Court’s discretion to allow lateness where delay is reasonably explained and any prejudice can be compensated by costs – Costs ordered payable within specified period, non-payment to attract procedural consequences.
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26 October 2017 |
| September 2017 |
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Appeals from a registrar’s assessment of damages/interest lie to the Supreme Court of Appeal, not to a judge in chambers.
Courts Act s29 (repeal) — General Interpretation Act s13 (continuation of repealed law) — jurisdiction of Supreme Court of Appeal — Registrar’s assessment of damages/interest — Rule 3 High Court (Exercise of Jurisdiction of Registrar) Rules — Order 58(2)(b) Rules of Supreme Court — appeals lie to Supreme Court of Appeal, not judge in chambers.
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21 September 2017 |
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Appeal from a Senior Deputy Registrar in wrong forum, late filing and irregular affidavit; court awards costs to applicant/respondent.
Civil procedure — Appellate jurisdiction — Appeal from Senior Deputy Registrar must lie to Judge in Chambers — Wrong forum and late filing — Defective affidavit not to be regularised by appellate court — Costs for procedural applications.
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20 September 2017 |
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Stay granted of assessment proceedings pending appeal due to procedural irregularities and risk of injustice to the appellant.
Civil procedure — Stay of proceedings pending appeal — Discretionary exercise governed by risk of injustice and prejudice — Interlocutory judgment entered at scheduling conference — Procedural irregularities and assessment of damages by Registrar.
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20 September 2017 |
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Stay of execution refused where applicant misled court about a pending appeal and sought a stay contingent on a future appeal.
Civil procedure — Stay of execution — Continuation of ex parte interim stay — Leave to appeal not yet sought — Suppression of material facts — Stay contingent on future appeal untenable — Matters of merit to be determined by lower court.
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19 September 2017 |
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Court set aside ex parte stay of possession but kept title deeds in custody and barred disposition of property pending appeal, with no costs order due to legal aid.
Civil procedure – stay of execution – continuation or vacation of ex parte stay – setting aside ex parte stay on inter partes application; interim protection of title deeds pending appeal; prohibition on sale, pledge or mortgage of disputed property without appellate court permission; costs and legal aid.
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13 September 2017 |
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5 September 2017 |
| August 2017 |
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The applicant's claim of bias from the judge's legal comments failed for lack of proof.
Recusal; apprehended bias; fair‑minded and informed observer; 'real possibility' test; extrajudicial/intra‑judicial comments; timing and intervening binding decisions; interests of justice test for bail pending appeal
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12 August 2017 |
| July 2017 |
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Leave to judicially review anti-corruption investigations denied; prosecutorial discretion and investigatory process upheld.
Administrative law – Judicial review – Leave to apply – Prosecutorial discretion and investigatory powers under the Corrupt Practices Act – Delay and timeliness (Order 53 r.4) – Reasonableness and bad faith – Premature challenge to prosecution decision.
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19 July 2017 |
| June 2017 |
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Appeals from a registrar’s assessment of damages lie to the Supreme Court of Appeal; appeals to a judge in chambers are a nullity.
Appeals — appellate jurisdiction governed by Supreme Court of Appeal Act — Registrars’ assessments of damages are judgments appealable to the Supreme Court of Appeal — Rule 3 of the High Court (Exercise of Jurisdiction of the Registrar) Rules does not displace Order 58, rule 2(1)(b) — appeal to judge in chambers on assessment was nullity — Civil Procedure Rules 1998 and Practice Directions relevant to permission and procedure.
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20 June 2017 |
| April 2017 |
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Supreme Court dismissed stay application as an abuse of process amid overlapping interlocutory proceedings and ordered each party to bear own costs.
Civil procedure – Stay of execution pending appeal – Abuse of court process where multiple overlapping interlocutory applications pursued – Applicants must elect appropriate procedural route – Costs: each party to bear own.
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24 April 2017 |
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Applicant must exhaust tax-law remedies; no stay granted where Commissioner General had already determined the appeal.
Tax procedure — stay of execution — whether stay appropriate where Commissioner General has determined appeal within statutory period; requirement to exhaust statutory tax remedies; Court’s inability to stay proceedings before Commissioner General; adjournment and substitution of counsel.
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24 April 2017 |
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11 April 2017 |
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A stay cannot be granted where there is no execution because the judgment has been paid into court pending appeal.
Civil procedure — Stay of execution — Where judgment ordered paid into court pending appeal there is no execution to stay; application for stay of 'phantom execution' is misconceived — Leave to appeal not required merely because judgment delivered in chambers.
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11 April 2017 |
| March 2017 |
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Interlocutory injunction refused where statutory employment dismissal raised private law issues and damages were adequate.
Interlocutory injunctions — American Cyanamid principles — employment versus judicial review (Order 53) — statutory postholder dismissal — doctrine of necessity on bias — adequacy of damages; Electoral Commission Act s.12.
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6 March 2017 |
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Destruction and non-preservation of electoral materials by the Electoral Commission justified a re-run; appellant’s election invalidated.
Electoral law – preservation of electoral materials – s119 PPEA; Election petitions – standard of proof – satisfaction of the court; Destruction of ballot boxes – adverse inference where custodian fails to preserve evidence; Recount frustrated – re-run as appropriate remedy; Notification of interested candidates and procedural fairness.
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6 March 2017 |
| February 2017 |
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An ex parte interim injunction against a minister, granted without a proper application or evidence, was vacated; judicial review procedure must follow CPR 1998.
Civil procedure — Judicial review procedure (Part 54 CPR 1998) — Interim remedies (Part 25) — Ex parte interlocutory injunctions — Vacatur where no specific application or evidence — Grant of leave does not automatically result in injunction or stay — Commissions of inquiry — resignation/suspension of public officers — interpretation of "Rules of the Supreme Court 1999" as CPR 1998 (26 April 1999).
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8 February 2017 |
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The appellant's purchase and possession of customary land created an equitable proprietary interest defeating the first respondent's later lease.
[Customary land] Nature of customary land title; sui generis proprietary interest; vesting in President does not negate intermediary proprietary rights; sale/alienation of customary land subject to customary law; equitable interest arising on contract and part performance/possession; purchaser in possession gives notice; appellate rehearing powers; trespass and damages for unlawful construction.
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8 February 2017 |
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Where joint ownership was intended but contributions are indeterminate, courts may award each party a 50% beneficial interest.
Family law – division of matrimonial property; matrimonial/home converted properties – equality is equity where contributions indeterminate; contribution to development as basis for beneficial interest; household expenditures insufficiently particularised to establish proprietary claim; custody does not automatically entitle provision of a home; child maintenance and school fees – shared responsibility
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2 February 2017 |
| January 2017 |
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Delay, non‑prosecution and procedural defects justify refusal of stay and refusal to certify a defective constitutional referral.
Civil procedure – stay of execution – default judgment – laches and non‑prosecution; Criminal procedure – section 302A CPEC – applicability where accused not charged; Constitutional procedure – referral/certification under Rule 8 and Chief Justice’s role – originating motion required for non‑referral constitutional challenges; Court’s duty to assess substantiality before referral; Registry and drafting obligations.
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24 January 2017 |
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Expired statutory custody limits make detention unlawful; bail decisions must follow custody rules and Bail Guidelines.
Constitutional right to release – s.42(2)(e); Custody time limits – ss.161A–161J CPEC mandatory; No power to extend time after expiry except as statutorily provided; Bail incidental to release; Bail Guidelines Act – mandatory factors and information duty; Juvenile protections; Remittal for reconsideration.
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11 January 2017 |
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Failure to apply mandatory Bail Guidelines and exceeded custody time limits justified bail pending appeal.
Criminal procedure – bail – distinction between constitutional right to release (s.42(2)(e)) and statutory bail (s.118) – applicant must prove threshold facts; State bears evidential burden. Bail (Guidelines) Act and Guidelines mandatory – courts must consider all prescribed factors and may order production of missing information. Custody time limits (s.161A–161J) binding – detention beyond limits requires release. Bail pending appeal – application should accompany notice of appeal but Court may waive and hear it. Single member cannot determine substantive bail appeal; full court required
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9 January 2017 |
| November 2016 |
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Leave to appeal out of time granted where delayed delivery and lack of notification provided good and substantial reasons and prima facie grounds.
Civil procedure – leave to appeal out of time – enlargement of time (Order III r4 SCA Rules) – good and substantial reasons – prima facie grounds of appeal – SCA procedure governed by SCA Act and Rules (not High Court Rules)
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9 November 2016 |
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9 November 2016 |
| October 2016 |
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27 October 2016 |
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A single Justice lacks power to hear appeals or premature interlocutory injunction applications; appeal must be entered and heard by a three‑judge panel.
Appeal procedure – Jurisdiction of single Justice of Supreme Court of Appeal – Section 7 SCA Act – Entry of appeal and record settlement under Order III rules 5–19 (rules 10–11, 19) – Interlocutory injunction pending appeal – Prematurity and abuse of process.
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24 October 2016 |
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10 October 2016 |
| September 2016 |
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Applicant must prove special circumstances or inability to repay to secure a stay of execution pending appeal.
Civil procedure — Stay of execution pending appeal — Assessment of interest — Adjournment discretion of Assistant Registrar — Balance of justice and requirement to show special circumstances or inability to repay — Undertaking to repay.
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18 September 2016 |
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Stay granted pending appeal where execution risked rendering appeal nugatory and procedural basis for rehearing was upheld.
Civil procedure – Stay of execution pending appeal – Order 59 r.13 Rules of Supreme Court (1999) – applicability in Malawi – rehearing after High Court refusal – not an irregular appeal requiring leave – equitable discretion – unclean hands – intestate estate distribution – risk of rendering appeal nugatory.
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6 September 2016 |
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Stay granted where appeal raises substantial issues and execution would render appeal nugatory; Order 59 r.13 held applicable.
Civil procedure — Stay of execution pending appeal — Applicability of Order 59 r.13 (Rules of Supreme Court 1999) in Malawi — Re‑application/rehearing in higher court — Leave to appeal not required — Equitable relief and clean hands — Stay where appeal would be rendered nugatory.
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6 September 2016 |
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1 September 2016 |
| August 2016 |
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Delay and failure to prosecute an appeal, not prior counsel’s ineptitude, defeat a stay of execution pending appeal.
Civil procedure — Stay of execution pending appeal — Delay and failure to prosecute — Four-part test (Anglia Book Distributors) — Prior counsel’s negligence not special circumstance — Costs to successful respondent.
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31 August 2016 |
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Applicant failed to show special circumstances warranting a stay of execution of an interest assessment pending appeal.
Civil procedure – stay of execution pending appeal – requirements for special circumstances – balance of justice – discretionary refusal of adjournment – enforcement of assessed interest – undertaking to repay
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31 August 2016 |
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11 August 2016 |
| July 2016 |
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26 July 2016 |