WALKER v McLELLAND [1989] NSWCA 220

WALKER v McLELLAND SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA 20 February 1989

[1989] NSWCA 220

Clarke JA. This is an application by an appellant from a decision of Young J in which his Honour decided only one of the questions which were raised between the parties. He reserved for later consideration the other questions. The appellants seek to stay the further proceedings in relation to the other part of the proceedings upon the basis that if they are successful in the appeal then the other proceedings become otiose.

It is accepted that, unless the respondent succeeds in the appeal, no purpose is to be served by a hearing of the other proceedings. What counsel for the respondent urges upon the Court is a course allowing the other case to be brought to a position ready for hearing; in other words he suggests that the interests of justice require that those proceedings be not delayed during the pendancy of the present appeal.

It seems to me I am required to balance the likelihood of a waste of costs against the possibility of unnecessary delay. The costs of further proceedings in the remaining proceedingwould be unnecessary if the appellants are successful in the appeal. In that instance all the costs incurred in the other proceedings would be, in effect, wasted.

On the other hand there will be some time pass before the appeal is heard. Unless some steps are taken to advance the other proceedings, they will be much delayed.

In carrying out this balancing exercise I think the interests of justice require that the other proceedings be permitted to proceed to the completion of the pleadings and that they be stayed at that time.

Accordingly I will order that pending determination of the appeal the further proceedings in the Supreme Court Equity Division, matter no. 2092 of 1988, be stayed excepting insofar as pleadings should be completed. I make no order as to costs.