NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v ROBERTSON [1994] NSWCA 227

NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION v ROBERTSON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 19 December 1994, 19 December 1994

[1994] NSWCA 227

PRACTICE AND PROCEDURE — Court of Appeal — stay of execution on judgment under appeal — protection of utility of appeal — real issue in appeal concerning liability — legal onus on claimant — forensic onus on opponent to show no risk of recoupment — execution of judgment stayed.

PRACTICE AND PROCEDURE — Court of Appeal — stay of execution of judgment under appeal — disputed judgment in favour of plaintiff in claim of negligence — primary judge (Leslie AJ) finds apportionment for contributory negligence 50% — awards judgment of $101,107 — provides stay of execution upon payment of 50% of judgment — defendant appeals on liability and damages — contends that plaintiffs recovery is seriously in doubt — requests stay to protect utility of appeal — held: (Kirby P):

(1) In providing the stay the Court of Appeal would

(a) require the applicant to establish its entitlement to a stay;

(b) respect the entitlement of the successful party, unless stayed, to the fruits of the judgment;

(c) respect the assessment of the primary judge;

(d) take into account the principles restraining disturbance of apportionments for contributory negligence.

AV Jennings Construction Pty Ltd v Maumill (1956) 30 ALJ 100 (HC) referred to;

(2) But as a serious issue in the appeal had been shown and as recovery of sums, once paid, might be difficult, a stay should be provided but with expedition of the hearing of the appeal.

Observations by Kirby P on the advantageous position of the judgment creditor to establish any lack of risk to the judgment moneys if paid over in advance of determination of the appeal.

Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 (CA) applied.