L'UNION DES ASSURANCES DE PARIS IARD v SUN ALLIANCE INSURANCE LTD [1994] NSWCA 173

L'7UNION DES ASSURANCES DE PARIS IARD v SUN ALLIANCE INSURANCE LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 23 May 1994, 23 May 1994

[1994] NSWCA 173

PRACTICE & PROCEDURE — Court of Appeal — stay of execution of judgment — necessity to show grounds for — not available simply because asked for by appellant — held: The fact that a judgment is said to be "trifling" and that the parties are large insurers is not, of itself, sufficient to justify the grant of a stay of execution of a judgment under appeal.

Kirby P Before the Court is an application for a stay of execution of a judgment of Barbour DCJ and also an application for expedition.

Barbour DCJ made his order in litigation between two insurance companies. The amount at stake is less than $40,000. It is therefore small in comparison to the means of the parties. There is no discernible risk that, if the judgment sum is paid and the appeal succeeds, the judgment moneys will not be repaid. The opponent objects to the stay. It points out that it has the judgment in its favour which it is entitled to enforce unless an order for stay is granted. It argues that no real reason has been given for granting the stay.

It was suggested that the stay should be granted because the amount was, as it is described, "trifling". It was said that it could not be described as "the fruits of the victory", a phrase used frequently in stay jurisprudence. It was suggested that the "fruit" involved in this case scarcely deserved that description and provided such a modest bowl that the Court would not be concerned with it.

It is true that as between two insurers the amount at stake here is extremely small. It is also true that the victory was, in money terms, a small one. For all I know,

however, the victory may be small in quantum but important in principle. Indeed, so much was suggested in support of the application for expedition of the appeal.