KIMBERLEY HOMES PTY LIMITED v APM WOOD PRODUCTS PTY LIMITED [1989] NSWCA 125

KIMBERLEY HOMES PTY LIMITED v APM WOOD PRODUCTS PTY LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SAMUELS JA 23 March 1989

[1989] NSWCA 125

Samuels JA. This was a motion for a stay of execution of orders made by Cole J on 17 February 1989. A notice of appeal from his Honour's judgment having been filed, the other relief sought in the motion was not pressed. I reserved my decision in order to read Cole J's judgment which I had not had the opportunity of doing before the motion was argued. There the facts are very fully set out and I need not recapitulate them.

I take the principles which I must apply to be those discussed in Alexander & ors v Cambridge Credit Corporation Ltd (Receivers Appointed) & anor (1985) 2 NSWLR 685, in particular at 694-5. Having considered the matter I am not satisfied that the claimant has demonstrated 'an appropriate case to warrant the exercise of discretion in his favour' — that is to say, to warrant the continuance of the stays already granted by Cole J himself and by Priestley JA in order to preserve the position until a substantive applicationcould be considered.

In arriving at that conclusion I take into account my opinion that the appeal has been lodged without any real prospect of success and, I infer, in the hope of gaining a respite against immediate execution upon the judgment: see Alexander at 695. I bear in mind that apart from a small payment to one house owner and a claim from another no claims have been made against the claimant in respect of the allegedly defective roof trusses. I take account of the offer made before Cole J by the opponent and its rejection by the claimant. Accordingly, the position is that there is no sum which can be the subject of a set off and no immediate, or even medium term prospects, of any such sum being assessed. The amount for which judgment has been directed is admittedly due by the claimant to the opponent and, upon the question of equitable set off I myself would have come to exactly the same conclusion as Cole J did. In all those circumstances I do not consider that the claimant has demonstrated any case for a stay.