SANDERSON MOTORS PTY LTD v SINGH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY JA 12 December 1994 [1994] NSWCA 276 Mahoney J This is an application for a stay of execution of an order made by his Honour Acting Judge Kennedy-Smith. An order was made apparently on 28 October 1994. The circumstances of the case are somewhat unusual. The case involved a Porsche motor vehicle and his Honour made orders (I do not attempt to paraphrase precisely the form of them as set out in his judgment) for return of the vehicle and also for damages for deprivation of it over a period of some years. The damages assessed were $40,000. An application was made for stay of the execution of the orders. However, when the application came on for hearing it was objected to on behalf of the respondent on the ground that there was little or no prospect of success in the appeal. This objection was based to an extent at least upon the form of the notice of appeal. The notice of appeal as drawn contains only two grounds: one, his Honour erred in the exercise of his discretion; and, two, that the discretion refusing an adjournment miscarried because of a number of matters set out in the notice of appeal. Mr Stone for the plaintiff, the respondent to the application, has submitted that that appeal is incompetent. That submission would raise interesting questions under the provisions of the District Court Act. When the matter was pointed out to Mr Barry QC for the applicant, he ultimately indicated the desire of his client to move for an amendment to the notice of appeal; that course was taken upon the basis that it was, as I indicated, rather unlikely that he would have obtained a stay in support of a notice of appeal in its present form. If that application for amendment were made and succeeded, it would preserve the existence of the present appeal. If the notice of appeal as at present drawn were to be withdrawn, that would bring about the result that there would be no pending appeal and any appeal sought to be brought would be out of time. Mr Stone indicated he would oppose any such amendment. I therefore indicated if it was desired to apply to amend the notice of appeal, I would favourably consider standing over the present application to enable it to be dealt with at the time when the application for amendment of the notice of appeal was made. The question then arose as to stay and as to the orders to be made in the meantime. The position is somewhat complicated because of the time over which the dispute has extended. In all the circumstances and without reciting the contentions which have been advanced by the parties, I propose to direct that the present application, that is the application for a stay, be stood over until the second motion day in February. I direct that pending that date there be a stay of execution of the judgment with liberty to either party to move for removal of that stay should the circumstances warrant such application. (I do not mean by this to invite an application for removal of the stay in the absence of real and substantial reasons but I think I should maintain the right of the parties in the meantime so to move should the circumstances warrant it). 2 UNREPORTED JUDGMENTS It is anticipated that an application for leave to amend the notice of appeal will be filed. Mr Barry has indicated an intention or at least the prospect that that will be filed on or before Friday next. In those circumstances and upon the basis of the application for amendment being filed, I have made the orders that I have. In the event an application for amendment to the notice of appeal is not filed within that time, then the orders which I have made will terminate. Ihave considered whether it is appropriate to make orders for the return of the vehicle in the meantime. Mr Stone has submitted with some cogency that the return of the car would not affect the artificer's lien, as it has been described, should his client fail. I am not sure what the effect of that return would be and Iam not disposed to make that order unless that matter is clear. As the matter has been pending for so long I do not think that the short period over the Christmas vacation will cause undue hardship to the parties. I think that the costs of today, as on a hearing, should be paid by the applicant, the adjournment being due to the form of the notice of the appeal.