DEMPSTER v COATES [1988] NSWCA 36

DEMPSTER v COATES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirByY P, MCHUGH and CLARKE JJA 28 March 1988 [1988] NSWCA 36

PRACTICE & PROCEDURE — stay of execution — conditions as to payment of part of verdict fixed by trial judge as a condition for a stay — application to Court of Appeal for stay — proper approach to order by trial judge — Jennings Construction Ltd vy Burgundy Royale Investments Pty Ltd (1986) 61 ALJR 102 referred to — need to protect utility of appeal — Alexander & Ors vy Cambridge Credit Corporation Ltd (Receivers Appointed) & Anor (1985) 2 NSWLR 685 discussed held: (Kirby P and Clarke JA; McHugh JA dissenting) Part payment of verdict sum should be paid into joint account administered by solicitors — not paid directly to respondent — discussion of proper approach to stay applications where trial judge has fixed terms of stay pending appeal. ORDERS (By majority) 1. Order that the summons for leave to appeal be referred to the Registrar to be listed for hearing before the Court constituted to hear the appeal in the proceedings between the parties. 2. Order that execution of the judgment directed by McInerney J to be entered pursuant to the verdict of the jury be stayed upon the condition that, within twenty-eight days, the claimant pay into an account to be established and jointed administered by the solicitors for the claimant and the opponent the sum of $70,000, such sum to remain in such account to abide the outcome of the appeal or until further order of the Court. 3. Order that the claimant pay the opponent's costs of and incidental to the motion.

Kirby P Before the Court are two proceedings. one is a summons for leave to appeal from a decision of McInerney J given in the course of defamation proceedings between the parties. on 3 February 1988, at the outset of a trial, his Honour declined an application, made on behalf of the defendant by his wife, for an adjournment of the hearing of the proceedings until 8 February 1988. The claimant wishes to challenge that order. Considering that it may be an interlocutory order which could only be challenged by way of a summons for leave to appeal, he has filed a summons for that purpose. The summons accompanies a notice of appeal as of right which seeks to challenge the final outcome of the trial before McInerney J and a jury. After McInerney J refused the adjournment, that trial proceeded on 1, 3, 4, 5, 8 and 9 February 1988. It resulted in a verdict of the jury in favour of the opponent on 10 February 1988. Following the jury's verdict his Honour directed that judgment be entered in favour of the opponent in the terms of the jury's verdict.