AUSTRALIAN SPECIALISED MEAT PRODUCTS PTY LTD v COLES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY JA 21 October 1991 [1991] NSWCA 11 Mahoney JA On 11 September 1989, the respondent Miss Coles was injured whilst employed by the appellant as a labourer in an abattoir. It has since closed. On 24 June 1991 his Honour Judge Davidson of the Compensation Court made orders for payment to her of two lump sums, one of $24,458 and the other of $25,000. The appellant has appealed to this Court against the award that was made. I am informed that the appeal is brought upon the basis that it is accepted that his Honour could and should have made some award in favour of the respondent Miss Coles. The contest is as to the amount to be awarded. It has been submitted for the Company that the proper amount is $6,114.50. The application before the Court now is for a stay of the judgment. The appeal is under the amended provisions: that is, there is an appeal as on a rehearing subject to the terms of the Act. The Court has been referred to decisions touching the exercise of the power to grant a stay of a judgment given in other courts. It is not necessary to rehearse the principles that are there referred to. In the present action the Court has before it evidence in sufficient detail indicating the position of the parties and the task of the Court in the present circumstances is to determine the matter by reference to that evidence. The parties are agreed that the respondent Miss Coles is the registered proprietor of a property at Bourke Street, Broken Hill. The property is mortgaged and the amount outstanding is approximately $16,000. There is a current mortgage repayment at the rate of $220 per month. The parties accept that the appeal which has been brought is a bona fide appeal. The question is whether the order should be made staying the judgment and, if it should, on what terms. It is accepted that, in accordance with the terms of a draft of an affidavit of 18 October 1991 made by Miss Coles, she proposes, if the amount of the judgment is paid, to purchase a second-hand motor vehicle and to pay out the mortgage to the mortgagee company. She indicates that if the appeal is successful and she is required to repay the amount of the award or presumably some substantial part of it, she would propose to repay "excess verdict moneys received by me by obtaining a bank loan for the amount to be repaid, secured by a mortgage on my property at 151 Bourke Street, Broken Hill". In the circumstances the appellant company may property claim that, in the situation which I have outlined, there would be significant difficulty in obtaining the payment of the amount of the judgment, should it be successful in the appeal. I think a case has been made out for a stay to be granted. I would direct that the award which has been given in favour of the respondent Miss Coles be stayed until the determination of the appeal or further order. 2 UNREPORTED JUDGMENTS A stay is granted upon the condition of the payment within 14 days of the amount which has been indicated, $6,114.50. I fix that amount on the basis that there is no other indication of what would be an appropriate amount, that is, on the upholding of the appeal and on the reassessment of her entitlement, would be the amount to which she would be entitled. Costs of the application to be costs of the appeal. As I said on the previous occasion, I draw attention to the fact that the provision that the stay is to operate until the determination of the appeal or further order will enable the parties, if the appeal is not proceeding with due expedition or in any other circumstances appropriate, to bring the matter back before the Court. And, of course, the payment which is a condition of the stay, $6,114.50 would be part of the award to be made.