NARROW FABRIC MANUFACTURING v KAHWAJIAN [1995] NSWCA 308

NARROW FABRIC MANUFACTURING v KAHWAJIAN

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA 24 April 1995

[1995] NSWCA 308

Clarke JA. This is an application for a stay of execution of Nash DCJ's judgment. As I indicated during discussion with counsel, this application should have been brought in the first instance to Nash DCJ. There is no doubt there were attempts to have it brought before Nash DCJ but the Judge indicated a slight disposition not to hear the application. I say a slight disposition because if a formal application had been put before him as it ought to have been put before him, his Honour would have happily dealt with it. It is important to observe that the trial judge is in a much better position than this Court to deal with a stay of execution. That judge would be well apprised of all the facts in the case and the likely areas of appeal on liability, as this appeal is, and should be able to process an application in a much shorter time more efficiently than this Court which has not seen the witnesses and, as in this case, not even a transcript of the judgment.

It has been explained, and I fully accept the explanation, that the judgment is not available and I am asked to act on a transcript taken during the delivery of the Judge's reasons. That transcript is no doubt accurate but it may not fully represent the final written judgment on which the Court of Appeal will act.

Notwithstanding the difficulty of dealing with this application in the absence of that material, I have decided it is better to proceed because we are dealing with a case in which the sum involved is very small indeed and there is a real risk that costs will rise beyond all sensible proportions.

Having regard to the fact that liability is in issue notwithstanding my doubts as to the strength of that case on appeal, I think that justice would be better served by granting the application and I propose therefore to order a stay of execution of the judgment of Nash DCJ of 24 March 1995 until the delivery by this Court of its reasons in the matter or until further order of the Court.