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. Mr Archibald, who has said everything that could possibly be said in support of the claim, has drawn attention to the fact that the dispute which gave rise to the litigation relates to the failure or refusal by the bank to continue overdraft accommodation for the appellant's company at a difficult time during 1990. The dispute about the bank's entitlement to withhold further accommodation has been the subject matter of cross-claims by appellant and an action by his company. The action of the company was also dismissed. It was therefore said that the appellant's impecuniosity which prevents him from providing security for the judgment flows from the wrongful acts of the bank against which remedies are sought in the appeal. There is something in this point but in my opinion it is outweighed by the other considerations including the view I have formed from reading the reasons for judgment of Campbell J. 2 UNREPORTED JUDGMENTS In all the circumstances it seems to me that the appropriate course is to decline the stay. If the bank elects to proceed with bankruptcy proceedings against the first appellant and overcomes the proceduraldifficulties the question whether the appeal should be allowed to proceed or whether he should be made bankrupt will necessarily arise before the Federal Court. That Court may have fuller information about the activities of the first appellant and any antecedent transactions which could be set aside if he is made bankrupt in time. This Court is not familiar with of the technicalities of the newer provisions in the Bankruptcy Act which enable the trustee to set aside antecedent transactions. There may be nothing in the point but if there is it seems to me the Federal Court is the place where it should be decided. Accordingly, I dismiss the appellant's notice of motion seeking a stay and order him to pay the costs of the bank. TREBECK: Would your Honour grant leave to have the costs taxed or assessed at this stage? HIS HONOUR: Do you need that? TREBECK: I believe so. The first application for a stay was withdrawn and we have come back and met an identical application on this occasion. HIS HONOUR: Can you oppose that, Mr Archibald? ARCHIBALD: No. HIS HONOUR: I grant leave to the opponent to proceed to have its costs of this motion taxed or assessed as current legislation and rules of the court require without further order. Orders accordingly.