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. Read before me this morning was an affidavit by the solicitor of the opponent. It deposes to the not inconsiderable asset position of the opponent, and to the fact that he receives royalties from a connection with the popular musical group Midnight Oil. These royalties provide a handsome cash flow to him. From this it was suggested that I would infer that there was no real risk, in the event that the appeal succeeded and the stake had been paid out in accordance with the orders of Hulme J, that the opponent would either not be in a position to repay the relatively modest sum involved, or would in any way make the recovery difficult. I accept that there is no evidence that the opponent would attempt in any way to obstruct the execution of the final orders of the Court. On the contrary, I would infer that a person with his assets, income and background would conform to the orders of the Court. But experience in the Court teaches that relatively small sums are often difficult to recover, and especially so where a party lives outside the jurisdiction. 2 UNREPORTED JUDGMENTS The parties, by their contract, agreed that a stake holder should hold a sum. That sum is with the stake holder at the moment. The litigation is not concluded between the parties. An appeal comes to this Court as of right. It seems to me, bearing in mind the hotly contested nature of the dispute between the parties, that it is preferable that the sum should remain with the stake holder to abide the outcome of the appeal. But the sum which should remain is not the entirety of the sum that is presently with the stake holder, namely $32,711.16. The only relevant orders that are sought in the appeal provide for, in effect, a proportion of that sum going to the opponent. The suggestion by counsel for the claimant is that the Court should leave the entire sum with the stake holder to cover the possibility that the appeal will succeed, and that substantial costs will have to be found by the opponent. There are two answers to this. The first is that that is not what the parties had agreed by their contract, nor is it the purpose of the fund. Secondly, the assets and cash flow of the opponent are such that I would not draw any inference that the claimant would have more than usual difficulties in recovering costs in such circumstances. It would be to distort the purpose of the fund to provide a now exemption, in effect, for security for costs to be paid out of the fund. That is neither sought in the relief claimed in the appeal to this Court nor is it the purpose of the creation of the fund in the first place. Accordingly, the order which I will make is that the orders of Hulme J be stayed to the extent that pending the outcome of the appeal, or any further or other orders of this Court, or of a Judge of Appeal, to the extent of 57.47 per cent of the sum presently standing in the fund is, to await the outcome of the dispute. Until that outcome is known, that proposition of the fund must remain with Messrs Raine & Horne Pty Ltd, real estate agents of Manly. That company should pay out of the fund the sum equivalent to 42.53 per cent of the current stake (including accrued interest). It should account at the time of the conclusion of the litigation as to the continued accrual of interest, and that proportion that must be paid to the opponent having regard to the final orders in the appeal. The parties will reach agreement on the exact terms of the orders required to give effect to these reasons. If they cannot do so, the matter can be listed before me for that purpose. As each party has partially succeeded in this motion, I would make no order as to costs. 1. Order that the orders of Hulme J be stayed to the extent that, pending the outcome of the appeal or any further or other orders of the Court of Appeal or of a Judge of Appeal, the fund presently standing with Messrs Raine and Horne Pty Limited, real estate agents, Manly, remain with them as stake-holder to the extent of 57.47% of the sum (including accrued interest) to abide the outcome of the appeal; and 2. No order as to costs. Counsel for the claimant: S J Motbey Solicitors for the claimant: Gulley Helene Bullock and Scerri Counsel for the opponent: M Young Solicitors for the opponent: Hungerford Lehmann and Andrews