HOMEBUSH MEAT TRANSPORT PTY LTD v QUINN [1988] NSWCA 66

HOMEBUSH MEAT TRANSPORT PTY LTD v QUINN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P

22 December 1988, 22 December 1988

[1988] NSWCA 66

PRACTICE AND PROCEDURE JUDGES appeal stay of execution of judgment — entitlement to stay to protect the utility of the appellate process — need to establish a case for relief by evidence — failure to establish such a case — orders below not accompanied by reasons — reasons on tapes supplied to parties by trial judge — tapes being transcribed — whether temporary stay should be granted — held: (1) General stay of execution should be denied for absence of sufficient evidence to justify such a stay. Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 applied; (2) But a temporary stay should be granted to protect the claimant's right in law to have transcribed reasons for the adverse decision below and to prepare its notice of appeal in the light of those reasons. Pettitt vy Dunkley [1971] 1 NSWLR 376 at 382 and Soulemezis vy Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 277f. referred to.

JUDGES — reasons — duty to give — provision of untranscribed tapes containing — held: Temporary stay of execution should be given to allow tapes to be transcribed and time for preparation of considered notice of appeal.

ORDERS

1. Execution upon the judgment entered by Judge Mahoney in the District Court on 9 December 1988 in proceedings between the claimant and the first opponent are stayed for twenty-eight days from this date.

2. Both parties have liberty to apply to the court, including to the Vacation Judge if need be, for an extension of that stay, in the event that the judgment is not available within twenty-eight days or otherwise, upon one day's notice to the other. 3. The costs of the motion for a stay to be costs in the appeal.