RYLEGROVE PTY LIMITED v FATIMI PTY LIMITED SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL CLARKE JA 17 July 1995 [1995] NSWCA 408 Clarke JA. Fatimi Pty Limited sued Rylegrove Pty Limited seeking to recover an amount owing on a construction job. The issue raised before Master Macready by Rylegrove Pty Ltd was that the moneys were not owed by the defendant but by another company which had since gone into liquidation. Master Macready found in favour of Fatimi. The amount involved was just under $70,000 and the case seems to have extended for six part or full days. Rylegrove appealed and its appeal was heard by Young J who, having heard the submissions upon the sole issue to which I earlier referred, dismissed the appeal. It was never suggested before Master Macready or Young J that the wrong amount was sued for or that the debt had been paid in full. An appeal to this Court has now been filed and although a number of parties were removed, and a number of grounds struck out, by the court in an earlier application it would seem that the appeal is proceeding. Today Rylegrove has sought a stay of execution of the original judgment which was, of course, upheld by Young J. The bulk of the evidence put before me has gone to show that some documents have been found, which despite earlier reasonable searches had not previously been discovered, and demonstrated or went some way towards demonstrating that all moneys owing to Fatimi had been paid. As I earlier pointed out it was never suggested at the trial or the appeal that that was the situation. Nonetheless Rylegrove wishes to adduce fresh evidence on the appeal and will seek to persuade this Court that despite its failure to raise the issues earlier it should be entitled to a verdict on the grounds of payment, an issue on which, as I recall the law, the onus lies upon Rylegrove. Apart from that material which is of extremely limited relevance on a stay application there was put before the court an affidavit which was in totally objectionable form and was rejected and a company extract from the Australian Securities Commission which indicates that in September 1994 Fatimi was dissolved or deregistered. It is not suggested that that is the present situation. What I think is the purport of the evidence is to demonstrate that Fatimi has had a somewhat chequered history and at one stage was dissolved before being brought back into existence. That is the totality of the evidence apart from some evidence of Fatimi's attempts to enforce its judgment. Prima facie a judgment creditor is entitled to the fruits of its victory in court. It will be deprived of those fruits at least until an appeal is terminated, if a case is made out by the debtor that the requirements of justice demand that a stay should be granted. That will occur where, for instance, it is shown that the judgment creditor is virtually insolvent and that if the moneys are paid over the debtor will most likely be unlikely to recover them in the event of it being successful in the appeal. There are, of course, other instances where the demands of justice might suggest a stay should be granted. 2 UNREPORTED JUDGMENTS In this case all there is is material relating to fresh evidence which it is said is going to swing the appeal. I am in no position to assess the strength or weakness of either party on the appeal although, having read the judgments of Master Macready and Young J, unless fresh evidence is admitted it would be my impression that the appellant has a difficult task ahead. However, I cannot predict what the court will do when faced with an application to admit fresh evidence, nor am I in a position to judge whether on the whole of the material it is shown that the interests of justice require that evidence be admitted for use on the appeal. In those circumstances I am totally unpersuaded a case has been made out for a stay and I dismiss the application with costs. Exhibits may be returned. Orders accordingly.