Croc’s Franchising Pty Ltd v Alamdo Holdings Pty Limited [2023] NSWCA 85

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Croc's Franchising Pty Ltd v Alamdo Holdings Pty Limited [2023] NSWCA 85 Hearing dates: 17 April 2023 Date of orders: 17 April 2023 Decision date: 17 April 2023 Before: Brereton JA Decision: Orders at [22]. Catchwords: APPEALS – Procedure – Stay pending appeal – Stay of execution under a judgment pending appeal – Where judgment debt would render all appellants insolvent – Where failure to grant stay would render nugatory right of appeal which is not unarguable – Balance of prejudice between the parties – Failure to grant stay would deprive appellants of right to prosecute appeal – Prejudice to respondent – Where appellants make ongoing payments for the benefit of respective wives' equity in the homes the appellants reside in – Where appellants unable to satisfy condition of partial payment of judgment debt – Appropriate in the circumstances to require appellants to provide security over homes in wives' name limited to the arrears component of judgment COSTS – Party/Party – Costs orders in interlocutory proceedings – Appellant to pay costs of stay application unless appeal succeeds – Where appeal succeeds parties should bear own costs COSTS – Security for costs – Application for security for costs substantially succeeded – Appellants to pay costs of that application unless appeal succeeds – Where appeal succeeds parties should bear own costs Legislation Cited: Bankruptcy Act 1966 (Cth) ss 120(1), 121 Conveyancing (General) Regulation 2018 (NSW) sch 5 – Commercial Leases – COVID-19 Pandemic Special Provisions Retail Leases Act 1994 (NSW) ss 87, 88(2) Cases Cited: Calverley v Green (1984) 155 CLR 242; [1984] HCA 81 Trustees of the Property of Cummins (A Bankrupt) v Cummins (2006) 227 CLR 278; [2006] HCA 6 Category: Principal judgment Parties: Croc's Franchising Pty Ltd (First Appellant) Brett Christopher Aldons (Second Appellant) Lawrence John Cusdin (Third Appellant)