PAYLESS SUPERBARN (NSW) PTY LTD v O'GARA [1988] NSWCA 111

PAYLESS SUPERBARN (NSW) PTY LTD v O'GARA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA 28 November 1988, 28 November 1988

[1988] NSWCA 111

Mahoney JA This is an application for the court to grant a stay in relation toa jury verdict. The circumstances are that on 4 October 1988 there was a proceeding between the plaintiff and the defendant company before a judge and jury in the District Court at Goulburn. The jury returned a verdict for the plaintiff for $150,000 and his Honour awarded $12,500 interest and entered judgment for the plaintiff for $162,500. The transcript records that counsel for the defendant, Mr Russell, sought a stay, and his Honour said:

I will grant a stay of execution of the judgment for a period of twenty eight days. It will be conditional upon the defendant paying in part satisfaction of the judgment the sum of $60,000.

The defendant has applied to this Court on motion seeking an order that the condition imposed on the stay be varied to relieve him of the condition for payment of the $60,000, and the execution of the judgment be otherwise stayed pending determination of the plaintiff's appeal.

The appeal, as appears from the amended notice of appeal, is directed both to issues of liability and also the quantum of damages.

Whether this is an application for the exercise of this Court's discretion in relation to a stay or for a variation of the order of the learned judge is not a matter which need concern this Court. I am prepared to deal with the matter upon the basis that this Court is exercising its own jurisdiction and what is asked in the notice of motion is in effect this Court's order.

Putting the matter in the broadest of terms, the course which ordinarily would be followed where there is an issue of liability as well as an issue of quantum of damages in an appeal is that no order for interim payment would be made. There are of course numerous possible qualifications to this. Where it is apparent that the likelihood of the appeal succeeding on liability is reasonably small and the plaintiff requires money for personal or other reasons, the court may make an appropriate order. But broadly the rule is as I have indicated.