NATIONAL PARKS AND WILDLIFE SERVICE v HAIG SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS JA 17 April 1989 [1989] NSWCA 151 Samuels JA This is an application by the National Parks and Wildlife Service for a stay of execution upon a judgment by Bignold J in the Land and Environment Court dated 31 October 1988. The judgment in the sum of $359,500 represented compensation for the resumption of the opponent's land. The dispute between the parties concerns the basis upon which that compensation should be determined. The claimant asserts that the correct amount is very much less than that; of the order of $149,000, and that sum, together with statutory interest upon it, has been paid over to the opponent. The claimant's application is essentially based upon the contention that if the whole of the judgment is paid, the opponent's resources are so slender that difficulty will be occasioned by the claimant in recovering it, if the appeal should succeed. There is an affidavit by the opponent and on the basis of that information I am not satisfied that the claimant has made out its case. I do not think that the likelihood has been shown that the claimant would be unable to return the balance which would be recoverable by the claimant, if the appeal were won. The claimant, in addition, advances a further point. It is that based upon the judgment of Dawson J in Federal Commissioner of Taxation v Myer Emporium Pty Ltd (1986) 160 CLR 220 there may be difficulties to be apprehended in recovering the amount of any statutory interest which is paid in the course of discharging the judgment and the obligations which the judgment imports. I do not think that the matters referred to by Dawson J in Myer are of relevance in the present dispute, and I do not consider that point has been made good either. On the other hand, it is true, as has been submitted, that the opponent suffers prejudice if he does not seize the whole of the judgment, by reason of the discrepancy between the statutory interest or the rate at which statutory interest will accrue, and the rate at which the opponent could invest the money in the market. The principle which I must apply is that I am to exercise my discretion in the proper interests of both parties, but bearing in mind that it is the claimant, appellant, who seeks that that discretion be exercised and who must, therefore, make out a case. In my opinion the claimant has failed to do so, and I dismiss the motion with costs.