Stay of execution of judgment pending appeal October 30, 2015
Lockhart Shire Council v. King  NSWCA 236
1 HANDLEY JA: I agree with Hodgson JA but wish to add some supplementary remarks of my own.
2 In my opinion the trial judge should not have required the appellant to pay part of the judgment as a condition of the stay of execution she granted. The plaintiff, who, it appears, was a pensioner without assets, was in no position to repay the amount without delay or difficulty if the appeal succeeded. In all probability the amount received was appropriated by her lawyers in payment of their costs without significant personal benefit to the plaintiff.
3 This was not a case where liability was conceded, or would not be in issue on appeal. A condition requiring part payment may properly be imposed in cases of that nature where the appeal will relate only to questions of quantum or apportionment.
4 The appellant was not bound to submit to the condition requiring part payment imposed by the trial judge. Under SCR Pt 51 r 15 this Court has original jurisdiction or power, which it can exercise at its own discretion, to grant or refuse a stay and it is not confined to reviewing a discretionary order of the trial judge in the exercise, by leave, of its appellate jurisdiction. See Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685, 692.
5 When the trial judge imposed this condition the appellant should have applied to this Court for an unconditional stay which, on the facts known to the Court, would have been granted. This was made clear by TCN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381.
Alexander v Cambridge Credit (1985) 2 NSWLR 685 @ 694F-695G:
There are other principles to be kept in mind. The onus is upon the applicant to demonstrate a proper basis for a stay that will be fair to all parties: Trlin. The mere filing of an appeal will not, of itself, provide a reason or demonstrate an appropriate case, nor will it discharge the onus which the applicant bears: see Supreme Court Rules, Pt 51, r 10; Waller v Todorovic. The Court has a discretion whether or not to grant the stay and, if so, as to the terms that would be fair. In the exercise of its discretion, the Court will G weigh considerations such as the balance of convenience and the competing rights of the parties before it: Attorney-General v Emerson (1889) 24 QBD
- Where there is a risk that if a stay is granted, the assets of the applicant will be disposed of, the Court may, in the exercise of its discretion, refuse to grant a stay: cf Clyne v Deputy Commissioner of Taxation (1982) 56 ALJR 857. Sometimes as a condition of the grant of a stay, where funds are available, a court will impose on the applicant the payment of the whole, or A part, to the judgment creditor: Andrews v John Fairfax & Sons Ltd  2 NSWLR 184. Even where no order is made for the payment of part of a verdict, it is not at all unusual for the Court, in the exercise of its discretion, to grant a stay on terms that the appellant give to the judgment creditor security in terms defined by the Court as appropriate to the fair adjustment of the rights of the parties. This is what was done in Trlin v Marac Finance Australia Ltd. In that case, as a condition of the continuance of a stay of B execution of judgment, the Court ordered the applicant to pay into a joint trust account, jointly administered by the solicitors for the parties, a sum equivalent to the interest payable under the mortgage, the subject of dispute, such sum (and the further payments falling due under a disputed mortgage pending the determination of the appeal) to be held on trust and thus available to disposition by order of the Court on the conclusion of the appeal. The object of this order was clearly, in recognition of the fact that the stay C would deprive the judgment creditor of the fruits of the judgment, to protect it and, by the accumulation of interest, to compensate it for the delays in recovery.
Two further principles can be mentioned. The first is that where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay: Scarborough v Lew’s Junction Stores Pty Ltd (at 130); D applied in Sun Alliance Insurance Ltd v Steiger (Full Court, Supreme Court of Victoria, 22 March, 1985, unreported). Thus, where it is apparent that unless a stay is granted an appeal will be rendered nugatory, this will be a substantial factor in favour of the grant of a stay: Wilson v Church (No 2) (1879) 12 Ch D 454; Re Middle Harbour Investments Ltd (In Liq) (at 2). Secondly, although courts approaching applications for a stay will not generally speculate about the appellant’s prospects of success, given that argument concerning the substance of the appeal is typically and necessarily E attenuated, this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interest of the parties, from making some preliminary assessment about whether the appellant has an arguable case. This consideration is protective of the position of a judgment creditor where it may be plain that an appeal, which does not require leave, has been lodged without any real prospect of success and simply in the hope of gaining a respite against immediate execution upon the judgment. Where, in the present case, Rogers J specifically contemplated in his judgment that an appeal would be lodged; where commentators on the judgment predicted a certain appeal (see eg R Baxt, Comment (1985) 13 ABLR 154 at 160); where the size of the verdict and the novelty of the issues raised suggested the likelihood of an appeal; and where it is properly conceded by the claimant that the appeal is arguable, no question arises relevant to the stay or to the terms upon which it should be granted, that the appeal has been filed simply G to gain time for the opponents.
7 The Court was informed at the conclusion of the argument that the appellant had paid the judgment (T 76). The appellant is therefore entitled to restitution with interest in accordance with the principles stated in TCN Channel 9 Pty Ltd v Antoniadis [No 2] (1999) 48 NSLWR 381. Because liability was in issue, and the prospects of restitution if the appeal succeeded would be doubtful, this Court would almost certainly have granted a stay of execution pending the appeal in accordance with the principles stated in Antoniadis [No
DEMPSTER v COATES – BC8802081
SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
KIRBY P, MCHUGH and CLARKE JJA
86 of 1988
28 March 1988
Vaughan v Dawson  NSWCA 169
application for stay of judgment pending appeal – principles for grant of stay – whether serious question to be tried – where no legal error alleged in judgment below – where proceedings below involved significant credit issues – where applicant unable to identify anything tending to show trial judge’s findings contrary to incontrovertibly established facts or uncontested testimony or that trial judge failed to use or palpably misused his advantage or that finding glaringly improbable or contrary to compelling inferences – balance of convenience – whether respondents would be unable to repay the judgment if appeal were to proceed and succeed – whether denial of stay would stifle appeal – where respondents have served applicant with bankruptcy notice – where applicant has costs order against him in favour of the respondents arising from cross-claim in proceedings below – where respondents have applied for assessment of costs of cross-claim – where reasonable to infer that applicant will seek review of cost assessment – where no material before Court to make out basis for concluding that such application would be concluded before hearing of appeal
Vosebe Pty Ltd Trading As Batemans Bay Window and Glass v Bakavgas  NSWCA 55
 That principle that the Court tends in favour of granting a stay where there is a risk that the appeal will prove abortive if the applicant succeeds and a stay is not granted is highlighted in cases such as Antoniadis. In that case a defendant which had succeeded on appeal sought restitution of the judgment it had paid over, there having been no application for a stay. The plaintiff’s solicitor deposed that the plaintiff was unable to repay the money: see Antoniadis (at ). It was in those circumstances that the Court admonished the profession that:
- 15We can only express regret that a stay of execution was not granted in this case pending the hearing of the appeal. It was never suggested that the opponent ran any risk of losing the benefit of her judgments by being prevented from enforcing them pending the appeal. She was protected from the purely financial consequences of any delay by the accrual of interest on the judgments in the meantime. This Court regularly stays execution on judgments pending an appeal where there is a risk that the plaintiff will be unable to repay the money without difficulty or delay if the appeal were to succeed.
- 16Adherence to this principle would have prevented the present embarrassing situation where the Court has enforced interim payment to the plaintiff but repayment cannot or will not be made without further litigation in the Federal Court with a risk that the opponent will be made bankrupt without the claimant recovering its money.
 The applicant on the present motion wisely seeks to avoid the Antoniadis outcome — which included an order that the defendant, which was successful on its claim for restitution, pay the costs of the application, its conduct in failing to seek an order for repayment at the hearing of the appeal having made the restitution application necessary: Antoniadis (at ).