JOSEPH BRYANT v COMMONWEALTH BANK OF AUSTRALIA [1993] NSWCA 42

JOSEPH BRYANT v COMMONWEALTH BANK OF AUSTRALIA SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA 8 November 1993

[1993] NSWCA 42

Clarke JA. This is an application by an appellant who is appealing from orders made by his Honour Levine J on 22 October 1993 whereby he ordered the appellant to give to the respondent forthwith possession of a number of tracts of land set out in the judgment.

The primary basis of the application for a stay of execution is that the appellant is appealing and has, he believes, a very good chance of success in his appeal.

Another, and perhaps more substantial, basis which is put forward by him is that his Honour erroneously declined to allow him to lead further evidence during the trial and thereby denied him natural justice.

He says that the fact that he was denied natural justice, or alternatively, the fact that he alleges he was denied natural justice, is a most important consideration in determining whether to grant a stay. Having put his motion on those two bases the appellant has said -and I should add that I have permitted him to say-from the Bar table, that either he, or the companies under his control, conduct businesses on at least two of the areas of land with which the order is concerned.

There is a cattle grazing operation which employs two people on the Sofala land and there is an orchard on the Little Hartley land which employs people and there is associated with that orchard a retail business which also employs people.

Mr Bryant submits that it would be disruptive to those businesses if a stay were not granted.

T have heard the submission which he advanced but I am afraid that there has not been put forward any reason of substance which would justify this Court in granting a stay.

I pointed out to Mr Bryant that prima facie the respondent, as the successful party at first instance, is entitled to the fruits of its victory and that if a stay were to be granted it would be necessary for him to put before the Court reasons of substance why that party should be deprived of those fruits.