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. There is unanswered evidence that suggests that the club may not be in a position readily or easily to repay the full amount of nearly $2 million if that were paid over. The club does not seek that sum. It asked that an amount of $750,000 be deposited pending the hearing of the appeal. That figure commended itself to Cole J. The insurer suggests that it would be more appropriate to order it to pay the sum of approximately $500,000. I agree with the insurer. I toyed during the course of argument with an intermediate position which would have provided for the deposit of a further sum with the solicitors for the parties. However, that does not commend itself to me upon reflection. First, there is no suggestion that the insurer will not be able to pay the judgment which is UNREPORTED JUDGMENTS ultimately determined to be the entitlement of the club. Secondly, one of the main considerations which suggests that an interim payment should be made, quite apart from the success of the club at first instance, is the desire to assuage the pressure that is being put upon it by its bank. However, the evidence indicates that the sum of $500,000, if paid to it, will be deposited with the bank. That should take away the immediate pressure. For those reasons I am of the view that the following orders should be made: 1. 4. Stay the execution of the judgment of Cole J of 17 December 1993 until the hearing of the appeal herein or any further order of the Court or of a Judge of Appeal upon condition that within fourteen days there is paid to Bankstown Football Club Limited by its solicitors the sum of $500,000. Order expedition of the hearing of the appeal category C to the intent that the appeal will be heard within the first three months of the new Term in 1994. . Grant liberty to the claimant to file amended notice of appeal raising additional grounds of appeal concerned with the determination of the matter of interest. Order that the costs of the motion for a stay be costs in the appeal. . Stay the execution of the judgment of Cole J of 17 December 1993 until the hearing of the appeal herein or any further order of the Court or of a Judge of Appeal upon condition that within fourteen days there is paid to Bankstown Football Club Limited by its solicitors the sum of $500,000; Order expedition of the hearing of the appeal category C to the intent that the appeal will be heard within the first three months of the new Term in 1994; . Grant liberty to the claimant to file amended notice of appeal raising additional grounds of appeal concerned with the determination of the matter of interest; and Order that the costs of the motion for a stay be costs in the appeal. Counsel for the appellant: B W Rayment QC Solicitors for the appellant: Abbott Tout Counsel for the respondent: J B Simpkins Solicitors for the respondent: Thomas Tarmo and Co