MACQUARIE ELECTRICITY and ORS v MARILYN DONNA McMAHON [1991] NSWCA 178

MACQUARIE ELECTRICITY and ORS vy MARILYN DONNA McMAHON

SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

KIRBY P 4 November 1991, 4 November 1991 [1991] NSWCA 178

PRACTICE AND PROCEDURE — Court of Appeal — stay of execution — unencumbered property — undertaking not to encumber — assets protect utility of appeal — orders made.

PRACTICE and PROCEDURE — Court of Appeal — stay — condition — protecting utility of appeal on quantum only — verdict of $564,610 — payment on account of $350,000 — substantial unencumbered real and personal property and bank balance — held: Upon undertaking that such assets would not be encumbered without notice to the appellant — stay judgment on payment of $450,000. Alexander and Ors vy Cambridge Credit Corporation Ltd (Receivers Appointed) and Anor (1985) 2 NSWLR 685 (CA) applied.

Kirby P These proceedings are before the Court by notice of motion, incidental to an appeal which has been lodged by Mr Bruce Edwards (the claimant) against a judgment entered in the Supreme Court in Griffith by Justice Wood in favour of Mrs Marilyn McMahon (the opponent). The judgment was in the sum of $564,610.

An appeal raising only issues relating to the quantum of the judgment has been filed. It will, in due course, be heard by the Court.

The claimant, one of the defendants below and now the only contesting party, has paid a sum of $350,000 on account of the judgment. The opponent contends, primarily, that no stay of the execution of the judgment should be granted but that if a stay should be granted, it should be upon terms requiring the claimant to pay the sum of $450,000.

Having regard to the principles which govern the provision of stays as outlined by the Court in Alexander and Ors v Cambridge Credit Corporation Ltd (Receivers Appointed) and Anor (1985) 2 NSWLR, 685, 693f, it does seem to me appropriate, quantum being in issue and the amount at stake being substantial, that in the circumstances of this case a stay should be provided. However, the stay should, as usual, be upon terms. See discussion, N Cooray, "Obtaining a Stay or Injunction Pending Appeal to the Federal Court', in M D Pendleton, Current Developments in Intellectual Property and Trade Practices, Sydney, June 1991, 28f and cases there cited.