CACHIA v ST GEORGE BUILDING SOCIETY LTD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL PRIESTLEY JA 20 September 1991 [1991] NSWCA 41 Priestley JA. On 3 October 1990 Cole J, after a hearing which, according to documents before me, took place on 17 and 18 September 1990, dismissed proceedings brought by Mr Cachia as plaintiff against St George Building Society Ltd as defendant. He ordered that there should be judgment for the defendant and that the plaintiff should pay the defendant's costs. Mr Cachia duly lodged a notice of appeal. In the course of getting the appeal papers in order for the hearing, there was some argument about how much material should be included. However, it seems that those disputes are resolved and that the appeal papers will soon be printed. On 12 August 1991 the defendant filed its Bill of Costs for taxation. The plaintiff thereafter filed a Statement of Objection to the Bill. By notice of motion filed on 2 September 1991, which came before me on 16 September 1991, the plaintiff applied for a stay of execution of the judgment against him and askedfor other orders relating to the preparation of the appeal papers. However, in the course of argument I was told that the matters concerning the appeal papers had been resolved and the only issue was whether or not a stay should be granted. The question concerning the stay related only to the defendant's continuation of its efforts to get the benefit of the costs order made in its favour by Cole J. The plaintiff's case concerning this was that he expected to win the appeal, so that the costs order against him would be reversed and the time and cost expended in the various aspects of taxing the Bill of Costs against him, and afterwards obtaining payment of the taxed amount, would all be wasted. Further, the plaintiff offered, in order to reduce any possibility of prejudice to the defendant if a stay were granted, to give security for any amount he became liable to pay under the costs order made by Cole J. For the defendant it was argued that the appeal had no prospects of success, that prima facie the defendant was entitled to the benefit of the costs order in its favour and that no reason had been shown for the granting of a stay. It seemed to me that whether or not the plaintiff had shown a reason sufficient to justify the granting of a stay depended on whether the appeal was one plainly without merit. As at that stage I did not have Cole J's reasons for judgment, I had no way of forming a view on this question. However this problem was solved by the reasons then, by agreement of the parties, being put before me. These reasons covered thirty-five pages and I reserved my decision on the application until I hadhad a chance to read them. It frequently happens that in interlocutory applications ancillary to appeals or proposed appeals it is necessary for this court to form some prima facie impression of the prospects of success if the appeal goes forward. This necessity may arise in applications for leave to appeal, in applications for extensions of time to begin an appeal and in cases such as the present. When the necessity to 2 UNREPORTED JUDGMENTS form such an impression on the merits arises, it is very occasionally possible to reach a firm view. This can only sensibly happen when the point of the appeal or proposed appeal is a very short one and the materials relating to it can be quickly absorbed. Except in such limited circumstances the court does not usually come to a firm conclusion on the merits of an appeal or proposed appeal at an interlocutory stage, because to do so would be in substance to embark upon a full hearing of the appeal, which is not the object, in general, of the interlocutory proceedings. In the present case the reasons of Cole J are not only lengthy but deal with quite complicated matters. He came to clear and definite conclusions adverse to the plaintiff on many issues. My impression is that the plaintiff has a very difficult task ahead of him in the appeal. However, for me to reach any firmer conclusion than that would involve taking some significant time to ensure that I had fully understood all the contentions put to Cole J and his detailed reasoning. It does not seem appropriate to me to do this in an application of this kind, particularly as I have not heard argument on the points involved in the appeal. I therefore will consider theapplication for the stay on the footing that it is not fully clear to me that the plaintiff has no prospects of success in the appeal. On this footing, it is possible that what the plaintiff says about the waste of time and money in proceeding with the taxation of costs could happen, if no stay were granted. Taking this into account together with the offer of security for any costs he may have to pay pursuant to Cole J's order I think the circumstances of the case show a sufficient reason for exercising discretion in the applicant's favour. I have reached this conclusion in light of this court's statement of the relevant considerations in cases such as this in Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685, especially at 694-695. I therefore make the following orders: 1. All proceedings upon Cole J's orders of 3 October 1990 stayed until further order. 2. Order 1 not to come into effect until Mr Cachia furnishes security for payment to the defendant of any costs he becomes liable to pay pursuant to Cole J's costs order against him; the nature and form of such security to be agreed between the plaintiff and the defendant and failing such agreement, to be settled by the Registrar of the Court of Appeal. 3. Costs of this application to be costs in the appeal 4. Liberty to apply on two days notice reserved. Orders accordingly.