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. Affidavits have been read which set out the properly which is controlled by Mr Parton or his company. He offers to provide an irrevocable undertaking in favour of the respondent bank to pay to the bank the full nett proceeds of the sale of three investments properties at Tea Gardens which he intends to sell "in an orderly fashion". The bank resists the provision of the stay sought by Mr Parton. It points to the apparent weakness of the appeal, having regard to the grounds of appeal to be argued, and the basis of the determination of the judgment in its favour by Giles J. l agree that, on a short and necessarily superficial assessment of the judgment, the appeal appears to face very substantial difficulties. However, it is undesirable, in all the circumstances, that I should here and now refuse the stay. Were I to do 2 UNREPORTED JUDGMENTS so, it would be my assessment that the claimants would not then be able to prosecute the appeal. As I have said, they have the appeal as of right. I am not minded, in all the circumstances, to put them out of Court by peremptory or even considered decision on the stay application. Nevertheless, it is appropriate that the stay should be granted upon terms which, so far as possible, protect the bank. Those terms will include a high measure of expedition of the hearing of the appeal. It is noted that the appeal will take one day to be heard. It will also be necessary for full written submissions to be provided to the Court, so that the Court can do justice to the respective parties in a hearing of one day. It is also appropriate that the claimant, Mr Parton, should execute the irrevocable authority which is referred to in paral6 of his affidavit, in case between now and the expedited hearing date he sells the investment properties there referred to. The appeal books have been printed. Save for a minor correction they are now available. It is therefore appropriate to make the following orders: 1. The execution of the judgment of his Honour, Mr Justice Giles dated 5 December 1991 ("the judgment") is stayed on the following conditions: (a) The appeal is to be heard, with category B expedition, on Tuesday, 29 September 1992; (b) The appeal is to be prosecuted by all parties with strict compliance with the Rules of the Court and with these orders now made; (c) Written submissions for the appellants are to be filed and served by 4 p.m. on Friday 11 September 1992 and written submissions for the respondent are to be filed and served by 4 p.m. on Friday, 18 September 1992; (d) Neville William Parton, Carol Joan Parton and Parton Enterprises Pty Ltd are to: (i) Execute irrevocable authorities to pay to the respondent the full net proceeds of any sale of the properties referred to in para3, para4 and para5 of the schedule to the judgment; and (ii) Notify the respondent, through its solicitors, within 24 hours of any sale being effected of any of the properties referred to in paral, para3, para4, paraS, para6, para7 and para8 of the schedule to the judgment; and (e) The appellants are to file and serve, by 4 p.m. on Friday, 11 September 1992 with their submissions, an affidavit setting out or annexing any fresh evidence they will be seeking to tender in the appeal; 2. The parties have liberty to restore the matter to the list on one (1) day's notice; and 3. The costs of the motion be costs of the appeal. Counsel for the claimants: M Clark Solicitors for the claimants: Spicer and Davies Counsel for the opponent: WH Nicholas QC/R White Solicitors for the opponent: Blake Dawson Waldron