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. There is no evidence here to suggest, nor has it been suggested, that the plaintiff has any particular need for the payment of the sum of money in question. Prima facie, therefore, it might be thought that if a stay is to be granted pending the determination of the appeal that stay should be without any particular provision as to payment. However, the plaintiff has filed evidence on affidavit as to the circumstances in which an order for a stay and for payment was made by the learned judge. An affidavit has been filed by Mr DJ Elder, the solicitor for the plaintiff in the proceedings. Mr Elder says that he was present in the District Court when the jury returned its verdict. He says counsel for the defendant, Mr Russell, sought a stay of proceedings but did not seek a stay of execution on the whole of the judgment. Counsel for the plaintiff/opponent sought the payment to the plaintiff of an amount, representing part of the 2 UNREPORTED JUDGMENTS judgment, and counsel for the defendant sought that there be payment of a smaller amount. His Honour Judge Gallen made an order that a stay be granted on payment to the plaintiff of the sum of $60,000. Mr Elder's affidavit then proceeds, "There was no dispute by counsel for the defendant as to whether a payment should be made." I think it is proper to act upon the basis that the issue before the learned judge when he came to make the order he did was merely the amount of the payment to be made. I think the proper conclusion is that his Honour was not asked not to make an order for payment of some amount as a condition of the stay of execution. Iam conscious that there is no need in the plaintiff for the receipt of the money. Correspondingly there is no evidence to suggest if the money is in fact paid there will be, should the defendant succeed in the appeal, any difficulty in recovering the particular amount from her. In the circumstances which are peculiar to this particular case, I do not think that the effect of what his Honour ordered should be interfered with.