CIC INSURANCE LIMITED v BANKSTOWN FOOTBALL CLUB LIMITED [1993] NSWCA 58

CIC INSURANCE LIMITED vy BANKSTOWN FOOTBALL CLUB LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KIRBY P 24 December 1993

[1993] NSWCA 58

PRACTICE & PROCEDURE — stay of execution of judgment — terms for providing stay — recovery by football club against insurer of substantial amount following fires — intention of Club to expend sums on capital works — held: Order stay on condition of payment of approximately a quarter of the judgment — expedite hearing.

Kirby P. It is Christmas Eve 1993. Outside the sun is shining. However, in this courtroom there are still disputes. This dispute is in the form of a motion which concerns the provision of a stay against execution of a judgment of Cole J. That judgment was in favour of the Bankstown Football Club Limited, the opponent. In its totality what is involved is a very large sum. According to orders which have been handed to me this morning, his Honour directed judgment in favour of the club in the sum of $1,913,962. He also made certain declarations and other orders.

The insurer wishes to appeal to this Court. The appeal lies as of right. It will come before the Court in 1994. In my opinion it should come with some degree of expedition. It is in the interests of both parties that the appeal should be heard quickly. That is because, as an affidavit read before me this morning indicates, it is the desire of the club to expend at least a portion of the sum recovered by it upon a new clubhouse. It would be undesirable that the new clubhouse be built with the capital which is in dispute. It would also beundesirable that the club's building programme should be unduly delayed by the appellate process.

The claim before Cole J arose out of two fires involving the club. The judgment in relation to the first fire is of the order of $1 million. The balance relates to the second fire and arises under a different policy. It is not to the point now to clarify either the facts of the case or the matters that will be in contest in the appeal. At this stage I have only a very imperfect understanding of what the conflicts will be. Nevertheless, experience in this Court teaches that it is ordinarily undesirable to permit the full amount of a judgment to be paid to a party where there is any real risk that the party may be in difficulties in recouping the sum in the event that the appeal is upheld.