PINKER v MONGER MOLLOY THYER SERVICES PTY LTD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE JA 18 October 1993 [1993] NSWCA 212 Clarke JA. In this matter there are two motions which have been before the court; one a motion for a stay of execution and the other a motion for an expedition of the appeal. I have already dealt with the motion for expedition and I am presently only concerned with the stay application. His Honour Hulme J directed the entry of judgment against the claimants, who were the defendants in the first instance, in the sum of $426,911. The claim arose from a dispute between the claimants and a company Monger Molloy Thyer Services Proprietary. In a real sense, although perhaps not a legal sense, the company was a partnership in which the two claimants were partners together with Mr Monger and Mr Thyer. They were the more recent partners but in due course they decided to go their own way and this they did. The difficulty was, according to the remaining partners, that they took as their clients persons who were the clients of Monger Molloy Thyer Services Proprietary. It was alleged at first instance that in acting in the way they did they had been in breach of their fiduciary duty to the company and his Honour accepted this claim and consequently found for the plaintiff and directed entry of judgment that I have mentioned. Disputes of this nature between professional persons almost invariably lead to unhappy and complicated circumstances, benefiting no one. This seems to be the case here as pendingthe hearing of the appeal the plaintiff, which is the opponent to the motion, is trading under significant difficulties as a result of the action of the claimants and the claimants themselves are in a somewhat difficult financial position. It is true that the successful party is prima facie entitled to the fruits of its victory but the overall obligation cast upon a court in an application of this nature is to make such order as accords justice to both parties, taking into account such matters as the fact that one party has won the case and whether the failure to grant a stay would lead to the collapse of the appeal. In the circumstances of this case, and bearing in mind the fact that the appeal is to be heard in February, I think the interests of justice require that I grant a stay. Ido not think the stay should be unconditional because, as I have earlier said, the action of the defendants has caused financial embarrassment to the plaintiff. It seems to me that the best I can do in the present circumstances is to grant a stay upon terms that the claimants pay to Mr Monger and Mr Thyer the sum of $5,000 per month, to be defrayed in payment of the expenses of the opponent pending the hearing of the appeal. The first payment is to be made within 14 days of today's date and the payments are expressly to be conditioned upon the term that if the claimants are successful in the appeal the moneys will be refunded to them. 2 UNREPORTED JUDGMENTS As the order which will be necessary to give effect to my judgment will be slightly complicated, I think I should stand the matter down to allow the parties to bring in terms reflecting those orders and in the circumstances I think the costs of the application should be paid by the claimants who are seeking the indulgence. Is there any particular order sought, or shall we stand the matter down to 2.15 to enable the short minutes to be brought in? EPSTEIN: Very well, your Honour. HIS HONOUR: I will fix 28 October at 2.30 pm as the time for settling the index in lieu of any date that has already been allocated. Orders accordingly.