GULABRAI v HAMER-MATHEW [No2] [1995] NSWCA 188

GULABRAI v HAMER-MATHEW [No2]

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KIRBY P, PRIESTLEY JA and SHELLER JA 8 May 1995

[1995] NSWCA 188

PRACTICE AND PROCEDURE-Court of Appeal-stay of execution of judgment-provision of security for costs-establishment of "special circumstances"'-total sum orders and unpaid on judgment $200,613.00-prospects of success affected by withdrawal of primary defence at trial-held (1) "special circumstances" for security for costs established under Pt51r11(1) SCR; (2) Security ordered and stay provided on terms that the claimant pay $120,000 into court.

Supreme Court Rules Pt51r11(1).

Kirby P. The proceedings before the Court started as an application for extension of time within which to move the Court and a summons for leave to appeal. However, it subsequently appeared that the claimant, Lux Gulabrai, filed a notice of appeal as of right challenging judgments of Brownie J of 22 August and 6 September 1994 and Master McLaughlin of 7 April 1995. That notice of appeal will, in due course, come before the Court for hearing.

It is therefore sensible that the Court should transfer the proceedings which are before it today so that the motions and the summons will come before the Court which is constituted to hear the appeal which is brought as of right. This is a sensible deployment of the resources of the Court, not least because I am commencing these reasons at 4.30pm at the end of a heavy motions list.

That then leaves two questions which are incidental. The Court should deal with them immediately.

The first is whether to provide any stay of the execution of the judgment of Master McLaughlin given on 7 April 1995. The opponent asked the Court to require that some part of that judgment be paid into Court or other arrangements appropriately be made. The second question is whether any order should be made providing for the security for the costs of the appeal to this Court.