McLAURIN v STATE BANK OF NEW SOUTH WALES [1995] NSWCA 286

McLAURIN v STATE BANK OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY JA 20 February 1995

[1995] NSWCA 286

Handley JA. In this matter Mr Archibald on behalf of the first appellant seeks a stay of execution of a judgment entered by Campbell J, as he then was, in favour of the State Bank for $271,594.42. The bank has since obtained possession of a property owned by the first appellant which it has recently sold by public auction which will nett it approximately $60,000 in reduction of the debt. There is no evidence that the first appellant has any other assets within the jurisdiction.

He is at present resident with his family in Cambodia and carrying on business there as a building contractor. He has appealed as of right as he was entitled to. However on a preliminary review of the reasons for judgment of Campbell J I have a firm impression that the appeal does not enjoy substantial prospects of success having regard to his Honour's findings of fact and the well-established rules which restrict the power of this court to interfere with judgments based on such findings.

The appellant seeks a stay of proceedings but says that he is in no position to offer any security to protect the bank from either the costs of the appeal should it fail or the inevitable increase in the judgment debt as aresult of interest accruing during the period prior to the appeal being determined, again on the assumption that it fails.

Since the first appellant is resident in Cambodia the bank faces difficulties in proceeding under the Bankruptcy Act. There is also the question whether any useful purpose would be served by making him bankrupt although this would put an end to the present appeal unless the trustee has both the funds and the advice to encourage him to proceed.

The prima facie principle enshrined in the rules is that a successful party is entitled to enforce the judgment. An appellant needs to make out a proper case to displace the general rule. Here, apart from the risk that the appeal may never be prosecuted if the appellant is made bankrupt there is really little in favour of a stay.