ALLCO STEEL CORPORATION v YOO SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE JA 11 July 1988 [1988] NSWCA 6 Clarke JA (Motion) This is an application for a stay of execution upon a judgment the entry of which was directed by Giles J on 17 June 1988. The total amount of the judgment was $189,699.78. The appeal from the judgment challenges both the findings on liability and the assessment of the damages awarded. The ground of the application is that the respondent is presently an illegal immigrant. I quote from page 25 of Giles J's reasons for judgment where he said: "The plaintiff came to Australia on a visitor's visa. From the expiry of the visa he was in Australia illegally. On 15 January 1987 he was arrested by the Department of Immigration and detained until 1 April 1987. He is presently the subject of a deportation order whereby he will be deported to Korea." It is argued for the appellant that if the damages award is paid to the respondent, then he may leave the country either as a result of the execution of the deportation order or of his own volition and render nugatory in a practical sense any success that the appellant enjoys in the appeal. In the particular circumstances of this case that argument is a fairly appealing one. Were I persuaded that the appeal on the issue of liability was a relatively strong one, I would no doubt accede to the application to stay execution. However, when one examines the grounds of appeal on the question of liability one is driven to the conclusion that even though they cannot be described as hopeless they do not create an impression of strength. It seems to me that the appellant has a difficult job in front of it in seeking to persuade the court that the failure to fence the hole in question was other than a negligent failure. In saying that I am focusing on one aspect of the negligence issue for there were a number of other areas in which I gained the impression that the respondent looked fairly secure in his hope to retain his verdict. It is not irrelevant also to note that there is an appeal against the excessiveness of the damages. There is a prospect that even if the liability appeal fails the award may be significantly reduced. The court is required in an application of this nature to keep a delicate balance and certainly to avoid a situation in which a party can be denied the fruits of a successful appeal. In all the circumstances of this case I think that balance is best maintained if I grant a stay upon terms that the appellant pay to the respondent the sum of $90,000 within 28 days. I should not leave the matter without observing that unless I had formed the view that the appeal on liability was fairly tenuous, I would have ordered an unconditional stay. Iam much influenced by what I regard as the weak nature of the grounds of appeal on the issue of liability. HIS HONOUR: Is there any costs application? MR KING: I seek costs. MISS NOE: I seek costs. 2 UNREPORTED JUDGMENTS CLARKE JA: I order the appellant to pay the respondent's costs.