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 have some difficulties in the appeal. However, trial difficulties are not insurmountable difficulties having regard to what the Court has said in such cases as Chambers v Jobling (1986) 7 NSWLR | concerning the review of findings of fact and truth-telling by this Court in an appeal which is by way of re-hearing. The amount of the debt is now, having regard to the interest which has accumulated, approximately $60,000. The claimants seek a stay of the execution of the judgment. They say there is a risk that the judgment moneys will be dissipated unless execution is stayed. The application falls to be determined in accordance with the principles stated by the Court in Alexander & Ors v Cambridge Credit Corporation Ltd (Receivers Appointed) & Anor (1985) 2 NSWLR 685. In that case, the Court indicated that some of the earlier decisions concerning stays were not now to be regarded as the law. In particular it is not now necessary for a party which pursues its right to appeal to show any special circumstances to secure a stay. On the other hand, the opponents have succeeded below. In part they have done so apparently, on the basis of Judge Gallen's acceptance of their witnesses's evidence. This 2 UNREPORTED JUDGMENTS impediment in the way of the success of the claimants in the appeal must be taken into account, in a general way, in assessing the prospects of success on the appeal and so judging what is at stake. One of the purposes of providing a stay is to protect an unsuccessful party against the risk that the payment of the judgment moneys will effectively deprive it of the fruits of success if, subsequently, it succeeds on appeal. This was the concern which brought the claimants to the Court in this motion. The claimants have placed before the Court ample evidence, in affidavits which have been read, which show the financial solvency of the company. By the same token, in an affidavit of the first opponent it is made plain that the first opponent and his wife are proprietors of assets whose unencumbered value is approximately $800,000. The claimants nonetheless express concern that, between this time and the hearing and resolution of the appeal, that sum or part of it might be dissipated so that the $60,000, if now paid, might not be recovered in the event of the claimants' success on the appeal. To meet this concern, the opponents, by their counsel, proffered to the Court an express undertaking that before disposing of any of the assets referred to in the affidavit of Gary Raymond Moore, 14 days notice will be given to the solicitor for the claimant of any sale or other disposition of any of the assets there stated. The opponents, have succeeded below. They are entitled to have that consideration taken into account in determining the outcome of this motion. In my opinion, having regard to the undertaking which is proffered to the Court, the claimants will be sufficiently protected in respect of the judgment sum if this is paid to the opponents. For this reason, I would reject the claim for a stay. However I do so upon the basis that the Court notes the undertaking which is given to the Court on behalf of the opponents by their counsel. The claimants must pay the costs of the motion. ORDER Motion dismissed with costs.