STATE RAIL AUTHORITY OF NEW SOUTH WALES v O'KEEFE [1994] NSWCA 297

STATE RAIL AUTHORITY OF NEW SOUTH WALES v O'KEEFE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA 4 July 1994

[1994] NSWCA 297 Mahoney JA

MOTION

This is an application for a stay of an execution of a judgment given in the Court on 4 April 1994. The judgment was entered for the plaintiff for $108,740. On an application for a stay the learned judge ordered that a stay be granted upon the payment forthwith of $50,000 by the defendant to the plaintiff. The defendant has lodged a notice of appeal, copy of which is before the Court. That notice of appeal indicates that, inter alia, liability is in issue. I am assured by the defendant that a bona fide appeal is brought in relation to liability.

The only evidence before the Court is that contained in the affidavit of Richard John Niven of 30 June 1994. Stating the matter broadly and, of course, without the qualifications and exceptions necessary for a full statement of the position, prima facie if liability is in issue in an appeal then the appellant is entitled to a stay of execution. I put that matter in broad terms but that is the starting point of the reasoning which, in a case such as this, may be adopted.

There being a bona fide appeal in relation to liability, prima facie therefore the defendant is entitled to a stay without conditions as to payment. However, I have enquired whether there are circumstances which would warrant the payment of any particular amount, as it were, as the price of a stay. There is no evidence to suggest there is any such necessity.

The defendant is conscious and apprehensive of the possibility that if the amount ordered by the judge be paid and there be a verdict for the defendant, it will be difficult or impossible for it to recover that amount. The evidence, such as it is, before the Court does not indicate any means which the plaintiff may have from which the amount could, in due course, be recovered, that is, the amount of the judgment with costs. In all the circumstances, I do not think any case has been made out for an order, other than that there be an unconditional stay. (I have put the matter in that way without regard to questions of onus or the like). In my opinion, the proper order to be made is that there be an unconditional stay. That will, therefore, involve the making of an order that the judgment of the Court below entered on 4 April 1994 be stayed pending the determination of the appeal or further order. I add "or further order" so that if the circumstances of the plaintiff should be such that, on proper principles, those advising him should see fit to make an application for some other order, then they may make that application. In saying what I have I do not intend to suggest that such an application should be made: on the contrary. But, in view of the sparsity of the evidence, I will preserve the possibility of such an application being made.