AUSTRALIAN GRANODIORITE LTD v DEVEX LTD [1991] NSWCA 6

AUSTRALIAN GRANODIORITE LTD v DEVEX LTD SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 18 July 1991, 18 July 1991

[1991] NSWCA 6

PRACTICE and PROCEDURE — appeal — Court of Appeal — stay of execution — case difficult but not hopeless or meritless security for costs — special circumstances — appellant precarious financial position — held: (1) A stay of in execution should be granted to protect the appellate right. Alexander and Ors vy Cambridge Credit Corporation Inc (Receivers Appointed) and Anor (1985) 2 NSWLR 685 applied; (2) But it should in the special circumstances be granted on terms that the appellant provides security for costs; (3) Such security for costs should be granted on costs estimated on a party and party basis not a solicitor and client basis. Supreme Court Rules, Pt51, rule 11.

Kirby P Before the Court are two motions.

Motions for stay of execution and security for costs One is for a stay of orders which Brownie J made in proceedings between the parties on 28 May 1991 and for an order for expedition of the hearing of an appeal against the judgment which followed his Honour's orders. The other is for an order for security for costs in the event that a stay be granted. Under the Rules of Court, security for costs of an appeal may only be ordered in special circumstances. See Supreme Court Rules, Pt51 rule 11. The Court has a large power to grant a stay for the purpose of protecting the appellate right. The authorities on the grant of the stay are well known. See eg Alexander and Ors v Cambridge Credit Corporation Inc (Receivers Appointed) and Anor (1985) 2 NSWLR 685. They evidence, in my view, a growing inclination of the courts in recent years to provide stays defensive of the right of the party to exercise the facility of appeal which Parliament has provided. Such stays must, however be ordered upon terms which are just to the party which has been successful in the court below.