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. The difficulty I feel — I have referred counsel's attention to this — is that in the absence of the judge's judgment I am not in a position to form a conclusion in relation to that matter. Reference has been made in affidavits to some of the things that were said at trial and to some of the things that were said in the course of the judgment. I do not cast doubt upon the accuracy of what has been said in that regard; I do not know whether it is accurate or not. Before I could form an assessment of that matter, ie, the prospect of the appeal succeeding, I would prefer to have a copy of the judgment before me. I would be loath to come to a conclusion that there is not a reasonably arguable ground of appeal being pressed until I saw what the judge said and why he decided the matter. In the circumstances I have indicated this view to counsel. Mr Willmott has submitted that the matter should be stood over until the judgment of the learned judge can be obtained. I am disposed to agree to that application. That means that something has to be done to preserve the status quo in so far as the application 2 UNREPORTED JUDGMENTS under the company legislation is concerned. In these circumstances I would propose, subject to the details being discussed with counsel, to direct that the matter stand over to anappropriate date in the New Year and that in the meantime a stay of execution upon the judgment be granted. I would propose that that stay be granted only until the matter is dealt with and upon the basis that, if events warrant it, the matter could be restored to the list for further consideration on short notice. If counsel see no objection to orders being made in such terms, and I do not invite detailed argument upon it, then I will make orders to that effect. I will stand the matter over to the second motion day in February 1995. The matter may be restored to the list in the vacation if there be anything of sufficient urgency to warrant that. I do not mean by that that it is to be restored to the list for minor reasons. It should be restored to the list only if matters of particular urgency arise. It may be restored on two days notice. Otherwise the matter will be dealt with on the second motion day of term or such other day as may be appropriate. I direct that the judgment be stayed temporarily pending the determination of that matter or further order. The costs of today should be costs in the application. Counsel may bring to the attention of those who have the burden of preparing these judgments, and their burden is significant at this time of the year, the desirability of this judgment being prepared without delay. Orders accordingly.