RADLEY INVESTMENTS COMPANY PTY LTD v AMQUE CLOTHING PTY LTD [1993] NSWCA 223

RADLEY INVESTMENTS COMPANY PTY LTD v AMQUE CLOTHING PTY LTD

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KIRBY P 5 July 1993 [1993] NSWCA 223

PRACTICE & PROCEDURE — stay — risk of financial difficulties of companies — held: Judgment to be paid into fund maintained by solicitors to await outcome of appeal — hearing expedited.

Kirby P. Before the Court is an application for the stay of execution of a judgment of Garling DCJ given in the District Court. The motion follows an appeal to this Court from the judgment. The judgment was given on 14 May 1993.

The application for stay of execution has followed the normal lines. As is so often the case, the matter is delicately balanced. I keep in mind the principles which govern the determination of applications for stay of execution, as expressed by the Court in authorities such as Alexander & Ors v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 (CA). The judgment creditor is entitled to have the benefit of the judgment unless a stay is demonstrated, in case of dispute, by the judgment debtor.

On the other hand, the judgment debtor has a right to appeal to this Court. That right has been exercised. An adjunct to that right, the judgment debtor is entitled to approach the Court to seek the protection of a stay.

The Court has had placed before it evidence on the partof both the claimant parties, (the unsuccessful plaintiffs below), and the opponent parties, (the successful defendants).

As I approach the matter on the basis of that evidence, each of the respective camps face certain difficulties in respect of their liquidity, at least viewed at this stage.

So far as the opponents are concerned, Mr and Mrs Salzburger who are the principals of the company Amque Clothing Pty Ltd have according to the evidence of Mr Salzburger, substantial personal assets. However, it is also true that the judgment is formally entered in favour of the company. Their interest in that company which occasioned the proceedings against them personally was that of guarantors. However, by reason of the success of the company in the proceedings, it was unnecessary to call upon Mr and Mrs Salzburger as guarantors. I must therefore look at the matter from the point of view of Amque Clothing Pty Ltd.