NARHEX AUSTRALIA PTY LIMITED v TELEMARKETING AUSTRALIA PTY LIMITED [1994] NSWCA 214

NARHEX AUSTRALIA PTY LIMITED vy TELEMARKETING AUSTRALIA PTY LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY JA 12 December 1994

[1994] NSWCA 214

Mahoney JA. This is an application which comes before the court as a matter of reasonable urgency. The application was filed on 6 December seeking orders that the judgment below be stayed and the hearing of the appeal be expedited.

The circumstances appear to be, as far as I am able to gather them from what has been put to the court in affidavit and by counsel from the Bar table, that the Telemarketing Company has sued the Narhex Company for the charges due to it, Telemarketing, in respect of an advertising campaign.

The learned judge below, following an arbitration, has made orders the total result of which appears to be that in the first instance the defendant, Narhex Company, is liable to pay something of the order of $ 194,788.56. That amount, of course, has been or may be qualified by what has happened, but that is the order of the amount ordered to be paid.

A notice of appeal has been filed and an application has been made for a stay of proceedings pending the determination of the appeal. The reason why a stay has beensought is, in addition to the ordinary reasons, that an application has been made under the company legislation for the wining up of the Narhex Company, or for the start of the procedure for that purpose, upon the ground that it has not paid the amount of the judgment.

Putting the matter in the very broadest of terms, the grant of a stay is discretionary. But where there is a reasonably arguable ground of appeal going to liability the court's disposition is ordinarily to grant a stay so that the purpose of the appeal will not be defeated. It has been put to me by Mr Willmott that such a stay should not be granted (and I am paraphrasing his short submissions in the course of dialogue) because there is no reasonable prospect of that appeal succeeding. He has not put the matter in precisely those terms, but he has suggested that the prospect of success does not warrant the stay.