LEWY and ORS v MOSS NOMINEES PTY LTD [1994] NSWCA 183

LEWY and ORS v MOSS NOMINEES PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA 4 July 1994

[1994] NSWCA 183 Mahoney JA

MOTION

This is an application for an order that proceedings on a judgment for some $280,748 be stayed until the determination of an appeal which has been lodged in the proceeding.

The proceeding is one in which the plaintiff claimed that the defendant had wrongly repudiated a lease and claimed for damages based upon non-payment of rent, or otherwise. The judgment given by the judge for the amount in question represents, as I understand it, either damages or a quantification of damages based upon the non-payment of rent.

The defendants have filed a notice of appeal and that notice of appeal raises a number of issues which could result, if upheld, in a verdict being given for the defendants. I have asked whether the grounds of appeal are to be pursued as bona fide grounds of appeal. It has been suggested, on behalf of the plaintiff, that they are not. The suggestion has been that they are, as it were, simply a number of grounds taken by way of denial of every substantial point made against the defendants in the judge's judgment. But there is no evidence to show that the grounds cannot or will not be pursued. I think I am justified in dealing with the matter on the basis that the grounds of appeal will be pursued and that on the face of them there appears to be some reasonable prospect of success. It is not necessary for me to quantify the extent of that prospect in precise terms but it is sufficient for the purposes of determining the present application as I do.

The general principles which, in my opinion, are to be applied - and I state the matter subject to all qualifications and exceptions which need to be attached to them - are, first, that a successful party in litigation is prima facie entitled to payment of the amount of judgment. Secondly, if a notice of appeal is filed from which it appears that a bona fide appeal is to be pursued on grounds which may result in a verdict being given for the defendant then, ordinarily, the Court will look favourably upon a stay of execution. Thirdly, there may be reasons relating to the circumstances of the parties, the need for money and other circumstances, which may result in qualification of the application of these principles.