CADELINA v NORRIS [1994] NSWCA 46

CADELINA v NORRIS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE JA 31 January 1994

[1994] NSWCA 46

Clarke JA This is an application for a stay of execution in respect of a judgment given by Judge Garling' on 17 December 1993 in favour of the opponent in the sum of $86,738. The only evidence initially put before the Court was the affidavit evidence of John Michael Cooper. That affidavit was almost silent on the question of the means of the opponent. All that was said was that, so far as the deponent was aware, there was present before the court on the hearing of the case no, or limited, material indicating the financial position of the opponent. That evidence has been supplemented by the tender of the amended Particulars filed pursuant to Pt12 r4A, but, in my opinion, they, while indicating the opponent had an annual income of $21,000, contain other materials which reduce substantially the value of that statement.

For his part the opponent has put evidence before the Court - admittedly in a slightly ambivalent form - which would indicate he has very considerable assets. Certainly his assets exceed the amount of the judgment by a significant sum. This is not a case of a person who might be likely to decamp on receiving his judgment. The opponent is a general medical practitioner who has been practising in Sydney for more than 20 years.

I am afraid I can see no ground whatsoever for the grant of the stay. The opponent is entitled to the fruits of his judgment and the application is dismissed.