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. However that may be, the onus is upon the claimant to persuade the Court to provide the stay. It must provide reasons why the stay should be granted. Stays are not granted simply for the asking. Nor are they refused or granted simply because the amount at stake is small in relation to the assets of the parties to the dispute. The judgment may indeed be trifling. The victory may indeed be small. But it is the judgment in this case. It is the victory of the opponent until it is set aside by this Court. The opponent is entitled to have the fruits of this small victory. I would refuse the stay, no proper reason having been established to provide it. On the other hand there would appear to be some reasons for expedition. The point in issue is a confined one of construction. The estimate given for the hearing is of half a day. It is said to the Court that the matter in issue is important to the policies written by the claimant. I am prepared to accept that as a basis for providing a measure of expedition. The orders of the Court will be: 1. Refuse the application for a stay; 2 UNREPORTED JUDGMENTS 2. Grant expedition category C, to the intent that the appeal will be heard within a period of four months on a date to be fixed by the Registrar after consultation with the parties; note estimate half day; 3. Order written submissions; 5 4. Order that the costs of the motion be costs in the appeal; and 5. Grant liberty to either party, upon two days notice to the other, to relist the matter for further orders. Counsel for the Claimant: S T White 10 Solicitors for the Claimant: Moray and Agnew Counsel for the Opponent: C B Brierley (Solicitor) Solicitors for the Opponent: Dunhill Maddern Butler253545