MUUSERS v ROBERTS [1990] NSWCA 131

MUUSERS v ROBERTS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA 9 April 1990

[1990] NSWCA 131

Mahoney JA This matter comes before the court on an application described as an application for expedition of the ninth ground of the appeal. Discussion indicates that the application is an application to this Court to remove the condition upon the stay of execution which was imposed by the learned District Court judge. I shall treat the matter on that basis and deal with it on the basis that the third ground of the notice is amended accordingly.

The proceeding is a proceeding brought against two defendants by a plaintiff because, to put the matter broadly, of her fall in the premises of the appellants. The learned judge found for the plaintiff against the appellants; he did not take an order against the third party. The appellants desire to appeal. It has been said, and not contested, that the question of negligence, that is, liability, is seriously at issue. It is not suggested that the appellants could not, if they failed on the appeal, meet the judgment in question.

His Honour ordered that the execution of the judgment be stayed on condition that one third of the verdict be paid within twenty-eight days of the judgment.

This Court exercises its own jurisdiction in relation to the matter: it is not technically an appeal against the judge's order. The Court must consider the position in accordance with the principles laid down in the decisions of the Court which deal with this class of matter.

No particular prejudice is urged in relation to the matter. There is reason to doubt the capacity of the plaintiff to repay the moneys in question if she failed on the appeal and the proceedings brought by her were dismissed.

In all the circumstances, taking into account what is said in the affidavit and what has been said from the Bar table, I think this is an appropriate case in which execution of the judgment should be stayed.