BERSENEV INVESTMENTS PTY LTD v NARILU PTY LTD [1989] NSWCA 20

BERSENEV INVESTMENTS PTY LTD v NARILU PTY LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 6 March 1989, 6 March 1989 [1989] NSWCA 20

PRACTICE and PROCEDURE — stay of execution — appeal from District Court — Judge fixes conditions of stay application for stay from Court of Appeal — held (Kirby P) Although the Court of Appeal must exercise its own discretion in an application of this kind, the Court of Appeal will take advantage of the stay conditions considered appropriate by the trial judge who will usually have more detailed knowledge of the facts and of the matters relevant to the stay discretion. Jennings Construction Limited vy Burgundy Royale Investments Pty Ltd [No 1] (1986-7) 161 CLR 681 considered. ORDERS 1. Stay the execution of the judgment of Judge Phelan dated 16 September 1988 upon condition that within twenty-eight days of this date the claimant lodge with the Registrar of the Court of Appeal, by cheque or by a bank guarantee in a form reasonably acceptable to the Registrar, security in the sum of $50,000. 2. Costs of the motion, opponent's costs in the appeal. 3. Liberty to each party to apply upon two days' notice to the other party

Kirby P On 16 September 1988 Judge Phelan in the District Court entered judgment in favour of the opponent in proceedings brought against the claimant based upon a claim in bailment. Put shortly, the opponent alleged that a quantity of furniture, which had been lodged with the claimant, had been damaged or was missing. It claimed damages accordingly. Judge Phelan ordered the claimant to pay damages in the sum of $39,652. He also ordered the claimant to pay the opponent's costs.

The claimant wishes to appeal to this Court. That is its right under the law. The opponent says that if the appeal is brought to the Court it should have an entitlement to execute upon the judgment in the meantime or if execution is stayed it should be adequately protected against the risk that, at the end of the litigation, it will not be able to recover from the claimant.