COUNCIL OF THE SHIRE OF WELLINGTON v BRINCAT [1991] NSWCA 65

COUNCIL OF THE SHIRE OF WELLINGTON v BRINCAT SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA 1 July 1991

[1991] NSWCA 65

Clarke JA. This is an application for a stay of execution of a judgment entered 11 August 1989. The evidence demonstrates that the claimant/appellant wishes to challenge the finding on liability and in the particular circumstances of this case it could not be said that the challenge is a hopeless one. In saying that I do not wish to indicate my views on the likelihood of the claimants success, because the simple fact is I have no views. My observation is based solely on a brief understanding of the claim which was that the claimant/appellant owed a duty of care to take steps either by warning or otherwise to protect the opponent from a danger which was situated near to but not on the claimant's land. It may be questions of substance will appear and I deal with this application upon the basis there is a possibility that that will be so.

The evidence also indicates that the opponent has no significant assets and will be unlikely to repay moneys received if she has disposed of those moneys and the claimantis successful in the appeal. On the other hand, the evidence indicates that the opponent has no urgent need of the moneys but wishes to invest them in real estate.

In the circumstances I think the stay ought be ordered but because of the delay which I am reasonably confident can be placed at the feet of the claimant I order that the case be placed in the Registrar's callover for 3 July 1991 for the purpose of fixing a date for hearing hopefully in August.

Accordingly, the orders I make are:

(1) Execution of the judgment in favour of the opponent be stayed pending the determination of the appeal;

(2) That the case be placed in the Registrar's callover for 3 July 1991 for the purpose of fixing a hearing date for the appeal;