BUD-PAK PTY LTD v ADAMSTOWN ENGINEERING PTY LTD [1995] NSWCA 64

BUD-PAK PTY LTD v ADAMSTOWN ENGINEERING PTY LTD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KIRBY P 13 November 1995 [1995] NSWCA 64

PRACTICE & PROCEDURE — stay — order for costs — appeal belatedly filed — upon assumption that no appear would be lodged, solicitor for unsuccessful plaintiff invites solicitor for successful defendant to prepare bill of costs in assessable form — bill prepared — late application made for leave to appeal out of time — primary decision (Ireland J) rests substantially on credit findings — difficulties of disturbing such findings — whether stay of execution of costs order should be provided — held: (1) In considering the application, the Court should take into account: (a) the fact of appeal and defence of appellate process; (b) the preliminary estimate of the prospects of success in the appeal; (c) the costs that would be occasioned by requiring assessment of costs to proceed; and (d) the delay in notifying the fact of appeal; (2) Having regard to those factors, the execution of the costs order should not be stayed.

APPEAL — credibility findings — prospects of success — application for stay of execution of costs order — observations by Kirby P on the duty of lawyers to bring home to appellants the difficulties which adverse credibility findings present to the successful prosecution of an appeal.

Jones v Hyde (1989) 63 ALJR 349 (HC); Alexander & Ors v Cambridge Credit Corporation Ltd (Receivers Appointed) & Anor (1985) 2 NSWLR 685 (CA), applied.

Kirby P. It is a strange thing that disputes about procedural matters can sometimes present problems which are quite difficult, and the decision in which is evenly balanced. This is such a case. Indeed I feel that it is very evenly balanced even though the issues at stake are not particularly significant. The amount truly in issue is of the order of $2,000 to $3,500. But the case illustrates the quandary of decision-making because there are persuasive arguments on both sides.