STAVRIANOS v COLES MYER LIMITED [1995] NSWCA 451

STAVRIANOS v COLES MYER LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY JA 27 February 1995

[1995] NSWCA 451

Mahoney JA. This is an application on motion in respect of an appeal pending before this Court. The only remaining matter to be dealt with upon the motion is the application by the appellants for a stay of execution of the judgment until the appeal has been heard. As an incident of that application, expedition of the appeal has been sought.

From what has been put to me, it is a matter in which, in my opinion, expedition should be granted and I would propose to make an order to that effect. Upon that basis it is in my opinion a proper matter in which a stay should be granted.

Without attempting to state the general principle in precise terms or to undertake a full statement of the qualifications and exceptions to the general principle, the position is, as the practice of this Court demonstrates, that where there is a fairly arguable point in respect of an appeal and the appeal is brought bona fide, then an order for a stay will be made, subject as I have said to proper exceptions.

One of the exceptions relates to the capacity of the appellant to meet any judgment when given on appeal and to the question whether the grant of a stay willhave detrimental effect on the respondent to the appeal and in effect deprive it of the benefit of the judgment. That, I think, is a sufficient, though no doubt inaccurate, statement of the general principle on which the court acts.

The judgment in the present matter has been said by Mr Kelly to be of the order of $613,000. It arises out of an obligation deriving from the conduct of a market and the guarantee of obligations of one of the people involved in the conduct of the market. (I shall refer to that person as the Liverpool company).