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. Such terms require, relevantly, that the claimant should pay to the opponent that part of the judgment which is either not in contest or which is likely, on a preliminary estimate, to represent the amount which at the end of the appeal process the opponent will recover from the contesting claimant. It is difficult for me, having only now been provided with the transcript of the trial and the reasons for judgment of Wood J, to make any but the most preliminary estimate of the issues at stake. The likely ultimate judgment which will be recovered by the opponent can only be predicted in a provisional way. 2 UNREPORTED JUDGMENTS However, the amount in contest between the parties is $100,000 being the difference between the $350,000 paid by the $450,000 contended for by the opponent. The purpose of the condition of the stay is to protect the position of the claimant and the utility of his appeal in this case. That protection can adequately be provided, according to the evidence placed before me in the affidavit of Mr Timothy Abbott. It appears from that affidavit (which was not contested) that the opponent is the registered proprietor of a property at 6 Sapphire Street, Dubbo. That property has an estimated value of $150,000. The property is, according to the affidavit, unencumbered. As well as that, the applicant has substantial moneys on bank deposit, being $280,000, and a car and furniture also unencumbered worth $45,000. Therefore, as to the amount in difference between the parties, the position of the opponent is fully protected, so long as no steps are taken to encumber the real property or the goods or to expend the substantial amount held to the opponent's credit at the bank. Counsel for the opponent gives an undertaking to the Court on behalf of the opponent that before any steps were taken to encumber the real property or the car or furniture, notice would be given to the claimant or his solicitor. That undertaking, in my view, removes the basis of the dispute between the parties. ORDERS 1. I note the undertaking given by counsel on behalf of the opponent; 2. In accordance with the agreement of the parties, I remove from the proceedings on the motion and in the appeal Macquarie Electricity, the named first appellant; 3. I order that execution of the judgment of Wood J of 2 August 1991 be stayed upon conditions that the claimant pay to the opponent the sum of $450,000 within fourteen days of this date, credit to be given for the $350,000 already paid; and 4. I order that the costs of the motion be costs in the appeal. Counsel for the claimant: P Sutherland Solicitors for the claimant: R O'Reilly, Solicitor, Government Insurance, Office of New South Wales Counsel for the opponent: PR Hennessy Solicitors for the opponent: Walsh and Blair