IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES REGISTRY GENERAL DIVISTON BETWEEN : Judge making order: Beaumont, J. Date order made: Where made: THE COURT ORDERS THAT: MINUTES OF ORDER 17 June 1985. Melbourne JUDGMENT No. ZcZeLoual of LSM No. G165 of 1984 ANDRE NOLASCO Applicant JENOLAN INVESTMENTS PTY. QGIMITED First Respondent ADLEY INVESTMENTS PTY. LIMITED Second Respondent a /repeRAL COUR* OF AUSTRALIA 24 JUL 2003 1. Order that the existing stay be continued up to and including 25 June 1985. 2. Order that the costs of this application be the cross~-claimants' costs in the appeal. 3. Order that the hearing of the appeal be expedited. 4. Fix 9.30 a.m. on Friday, 21 June 1985 for a hearing for the giving of further directions in relation to the appeal. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA NEW SOUTH WALES REGISTRY No. G165 of 1984 Gl DIVISION BETWEEN : ANDRE_NOLASCO Applicant AND: JENOLAN INVESTMENTS PTY. LIMITED First Respondent ADLEY INVESTMENTS PTY. LIMITED ce Second Respondent CORAM: Beaumont, J. DATED: 17 June 1985. REASONS FOR JUDGMENT Mr. Nolasco has lodged an appeal against the orders made in the principal proceedings. As a result of my upholding the cross-claims, Mr. Nolasco is faced with the prospect of satisfying a verdict against him in an amount in excess of §1,600,000.00. He has applied for a stay of proceedings accordingly. In support of his application, Mr. Nolasco says, and I accept, that while he is conducting a successful business as a builder, he does not hold assets sufficient to satisfy the cross-claim so that if the appeal fails he will 2. become bankrupt. Although he does not offer any security to the cross-claimants, Mr. Nolasco and his family company have proferred undertakings to the Court that they will not dispose of any of their assets except in the ordinary course of business. In my opinion, Mr. Nolasco has failed to establish any special circumstances of the kind which would justify a stay. The evidence, general as it is, suggests that Mr. Nolasco's business will suffer if bankruptcy proceedings are instituted against him but this is a collateral matter which is not strictly relevant to the exercise of the Court's discretion on a stay application. No attempt was made in argument on the application to contend that the appeal had any particular prospects of success: no arguable point of law or any challenge to a finding of fact was sought to be identified. In the end, the application was put on an ad misericordiam basis. Whilst one sympathises with the difficult position in which Mr. Nolasco now finds himself, the settled course of authority indicates that this type of consideration does not of itself justify a stay. I should add that if the judgment were satisfied in whole or in part and the appeal were successful, there is no basis for suggesting that there is any real possibility that Mr. Nolasco will be unable to recover any amount paid under the judgment. I propose to refuse the application now made but, 3. in the event that Mr. Nolasco may wish to seek leave to appeal from this refusal, I propose to grant a limited stay of seven days to enable any application for leave to appeal to be dealt with in the interim. In the circumstances, another judge should deal with the matter. I make the following orders: 1. Order that the existing stay be continued up to and including 25 June 1985. 2. Order that the costs of this application he the cross-Claimants' costs in the appeal. 3. Order that the hearing of the appeal be expedited. 4, Fix 9.30 a.m. on Friday, 21 June 1985 for a hearing for the giving of further directions in relation to the appeal. | certify that this and the 2 préce aoe pages are a true copy of the reasons for judgment herein of The Honourable Mr Justice Beaumont. a, ~ Associate Dated |] -6. 8S