TREVOR WILLIAM HAINES v NORMAN MUIR GRANT [1990] NSWCA 82

TREVOR WILLIAM HAINES v NORMAN MUIR GRANT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE JA 10 September 1990

[1990] NSWCA 82

Clarke JA This is an application for a stay by a defendant who was unsuccessful at the trial. The appeal is proceeding on the grounds of liability and damages. In relation to liability the appellant challenges his Honour's conclusions on negligence and contributory negligence.

In short, it is the appellant's intention that his Honour's finding on the probabilities that a Mr Manton was aft the capstan was so improbable that it should be set aside. That description of the issue on liability would demonstrate that the appellant has a very difficult task.

Notwithstanding, the appellant is entitled to pursue the appeal and there is no indication that -if the verdict moneys are paid to the respondent they would not be at risk. In this respect, I note that the respondent, who of course bears no onus, has not put on evidence to indicate that there would be no problems with the return of the verdict moneys if the appeal were upheld.

It seems to me that in view of the fact that liability was in issue, the stay should be granted. Accordingly, I will order execution of the judgment made by his Honour Acting Justice Bruce on 3 August 1990 be stayed until the termination of the appeal. In view, however, of the fact that the main ground of appeal seems to be likely to encounter considerable difficulties, I think I should give this case some measure of expedition.

Accordingly, I will do what I have done earlier today, that is, order Grade C expedition. Costs of today will be costs in the appeal.