BATEY v GIFFORD [1995] NSWCA 41

BATEY v GIFFORD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KirBY P 21 August 1995 [1995] NSWCA 41

PRACTICE & PROCEDURE — Court of Appeal — stay of execution of orders under appeal — deposit pursuant to contract of stake awaits conclusion of suit — whether stake should be paid out pending decision in appeal — held: The proportion of the stake in contest should remain with the stake-holder pending the outcome of the appeal.

Kirby P. Before the Court is an application for an order that the orders of Hulme J, made on 6 February 1995 in proceedings between the parties, be stayed until further order of the Court of Appeal.

The claimant (Mr Peter Batey) has appealed to this Court from his Honour's orders. He appeals as of right. The proceedings will, in due course, come before the Court for hearing. The hearing will conclude a hotly contested trial, a small flavour of which I have received today in hearing the motion before me.

The trial proceeded on 22 July, 23 July, 7 September, and 8 September of 1993, 12 April, 13 April 1994, and was decided by Hulme J on 6 February 1995. The immediate problem arises from the fact that, deposited in the trust account of Raine & Horne Pty Ltd, Manly, a stake holder, is a sum which has accumulated to $32,711.16. That sum, pursuant to the agreement between the parties, abides the outcome of the litigation. Under the orders of Hulme J, that sum would be paid to the opponent. The claimant contends that the sum should remain with the stake holder to abide the outcome of the appeal.

When the notice of appeal is scrutinised it is clear that, in the actual orders sought by the claimant in the appeal is included a declaration that, of the sum deposited with the stake holder, a proportion only be paid out to him in the event that the appeal succeeds. It is conceded that the sum, plus interest accrued thereon should be divided as between the claimant in the proportion of 57.47 per cent, and 42.53 per cent for the opponent.