MOORE v ECHO DAIRIES PTY LIMITED [1988] NSWCA 96

MOORE v ECHO DAIRIES PTY LIMITED SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 15 August 1988, 15 August 1988

[1988] NSWCA 96

PRACTICE — stay — pending appeal — matters taken into account: (1) opponents' success at trial; (2) difficulties in way of appeal because of possible findings of credibility of witnesses; (3) financial viability of opponents; (4) claimants' entitlement to appeal as of right; (5) undertaking by opponents not to dispose of disclosed assets without notice, such assets covering the judgment sum — held: Stay refused. Chambers v Jobling (1986) 7 NSWLR 1 referred to; Alexander & Ors v Cambridge Credit Corporation Ltd (Receivers Appointed) & Anor (1985) 2 NSWLR 685.

Kirby P This is an application for a stay of the execution on the judgment of Judge Gallen given in the District Court on 27 May 1988. The judgment arose out of a dispute between the claimants and the opponents concerning the repair of a truck owned by the claimants. The truck was repaired by the opponents who are a smash repair company. The truck was repaired for a sum of approximately $30,000. The case of the claimant was that an insurer, which has since gone into liquidation, was obligated to pay the opponents. The opponents were not paid. They claimed against the claimants. At the trial, the opponents asserted an express agreement on the part of the claimants to pay the sum. The claimants denied that agreement. Judge Gallen accepted the evidence of the opponents. His Honour said:

I am also satisfied that at the time this conversation took place that either Russell Halfpenny or John Halfpenny said to the plaintiff, Gary Moore, 'If the insurance company don't honour it, whatever, it's got to be fixed. I need the truck back, get on with it.' I am also satisfied that Russell or John Halfpenny said to the plaintiff at, or about, this time, words to the following effect: 'Go ahead and order the cabin, if the insurance company doesn't pay well somebody's got to pay for it, we'll pay for it." In the light of the acceptance of that evidence, it is plain that the claimants will