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. The present application is, as it has been said in argument, an application in a dispute between two commercial parties neither of whom appears to lack money and there is no evidence to suggest that if the verdict was obtained against the defendant it would not be able to meet it. In these circumstances, it may be, ordinarily the application for stay would be successful - I make no binding judgment in relation to that. However the respondent, the plaintiff, has placed before the Court letters passing between the solicitors which indicate that the defendants were prepared to provide a bank guarantee or to pay an amount into 2 UNREPORTED JUDGMENTS a joint interest bearing account representing the amount of the verdict. That would be a security for the verdict if the appeal was unsuccessful or to the extent that it was. In all the circumstances, these matters being essentially discretionary matters, I think the proper order to be made is that there be a stay conditional upon there being a payment of the amount of $280,748.67, the amount of the verdict, into a joint interest bearing account in the names of the parties, that payment to be made within fourteen days from the present date. If there be dispute in relation to the matter of the terms of the interest bearing account, that is, as to the bank, the interest acceptable, the terms of operation on it and the like, that dispute can be settled by the Registrar. However, I expect the parties and their solicitors to act sensibly in the matter and I assume no application to the Registrar will be necessary. In the circumstances it would appear that, that being the form of the order, the costs of the application should be costs in the appeal, that is, that the successful party in the appeal should have the costs of the present application.