MORISON v PECK AEROFAKO BV v PECK [1991] NSWCA 205

MORISON v PECK; AEROFAKO BV v PECK

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA 4 February 1991

[1991] NSWCA 205

Mahoney JA This is an application (I shall deal with the two motions together)by the two sets of defendants in a proceeding in which Mr Peck sued the defendants for injuries suffered by him in a motor vehicle accident.

The substance of the plaintiff's allegation appears to be that the first defendants sold him goods which were not proper for the purpose or otherwise defective and that the second defendant manufactured those goods.

There have been cross claims between the defendants and I understand that these have been determined in favour of Mr and Mrs Morison, the first defendants, and against Aerofako, the second defendant.

Judgment was given in favour of Mr Peck for $550,000 on or about 5 November 1990. Appeals have been lodged by both sets of defendants against the judgment. The appeals, at least that made by the corporate body, relates both to quantum and to liability. The appeal lodged by the Morisons may relate only to an issue of liability. However that be, the judgment given for Mr Peck is the subject of an appeal as to liability, and if the appeal is upheld Mr Peck would, of course, recover nothing.

An application has been made by both sets of defendants for a stay of proceedings until the determination of the appeal. The application has been opposed. I am satisfied that there is a bona fide appeal on foot and it is not suggested, and I would not find, that the appeal has not been pursued with appropriate diligence.

Mr Deane Johns, for Mr Peck, has submitted that a stay should not be granted. However, in the circumstances, I think it is appropriate that a stay of the judgment be granted pending the determination of the appeal.

He has then submitted It should be made a condition of the stay that there be payment to his clients of some amount. Orders for payment are frequently made where what is in issue is merely the quantum of the judgment. However, in the present case if the appeal succeeds, Mr Peck will, as I have sa, d, recover nothing. In these circumstances I do not think it is appropriate that an order be made for payment of moneys. There may be circumstances in which, having regard to the position of the plaintiff and upon an assessment of the likelihood of success of the appeal, it would be appropriate to make some such order; I do not preclude that possibility. However, I am not satisfied that this is such a case. In the circumstances therefore I think the order should be made.