PARTON AND ORS v AUSTRALIAN AND NEW ZEALAND BANKING GROUP LTD [1992] NSWCA 180

PARTON AND ORS v AUSTRALIAN AND NEW ZEALAND BANKING GROUP LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 24 August 1992, 24 August 1992 [1992] NSWCA 180

PRACTICE AND PROCEDURE — Court of Appeal — stay of execution of judgment — stay granted — strict terms — expedition of hearing ordered.

PRACTICE AND PROCEDURE — Court of Appeal — stay of execution of judgment — appeal to Court of Appeal as of right — primary judge (Giles J) determines case substantially on assessment of credit of an appellant — difficulties facing appellants in appeal — Abalos v Australian Postal Commission (1990) 170 CLR 167 referred to — held: Execution of judgment should be stayed and hearing expedited to preserve appellants' right of appeal which would otherwise effectively be lost by refusal of stay — strict conditions imposed.

ORDERS See orders in judgment herein.

Kirby P This is a motion for a stay of the execution of a judgment entered by Giles J against the claimants. The claimants have appealed to this Court as of right. Although the claimant, Mr Neville Parton, has separated from his wife, Mrs Carole Parton, I am satisfied, from an affidavit of Mr Parton's solicitor, that Mrs Carole Parton knows of these proceedings and is content that the solicitor should prosecute the matter on her behalf as well as on behalf of Mr Parton and his company.

The case arises out of a claim by the opponent bank against Mr and Mrs Parton and the company. In turn, that claim arises out of foreign exchange dealings. The proceedings before Giles J were determined adversely to the Partons. On the face of his Honour's judgment, his Honour was affected in the result he reached by his assessment of the credit-worthiness of Mr Parton. Clearly, this will provide a very substantial obstacle in the way of Mr Parton, his wife and his company succeeding in the appeal. I have taken pains to draw that fact to the attention of counsel for the claimants in the presence of Mr Parton, so that he will understand the very substantial hurdle which he has to overcome in order to succeed in the appeal. See Abalos v Australian Postal Commission (1990) 171 CLR 167.