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). The Liverpool company has undertaken obligations and guarantees have been given of its performance of those obligations. They are set forth in the documents Exhibits 1, 2, 3 and 4 tendered in the present application or are referred to in those documents. Those obligations have been transferred to the respondent company. It is to be argued that the obligations cannot be transferred, in law or equity. In the circumstances I am not satisfied that the point to be argued is not one of sufficient substance. It may be, as Mr Weber has submitted, that the odds are that the respondent will succeed upon the appeal. I express no firm opinion upon that, but I state that as an assumption. But the point is, I think, one which the appellant is entitled to argue. It is in that sense fairly arguable. It is accepted that the appeal is brought bona fide. On the face of it, therefore, the case appears to be a proper one for the grant of the stay. The application has a curious aspect in the sense to which I have referred in argument. The applicants are seeking to say that they have little or no assets; the respondents on the other hand are seeking to say the applicants have many assets. Normally what the respondents say would support an application for a stay. But 2 UNREPORTED JUDGMENTS Mr Weber has sought to use the point rather to suggest that there has been a dishonest attempt to misstate the basis of the application or to misstate the position in relation to the assets available for satisfaction of any judgment given by this Court. I take that into account. But in all the circumstances I do not think that the result is that the caseis one in which the discretion of the court should not be exercised so as to grant a proper stay. Mr Kelly has put before the court in support of his application two points: the first is that there is only a narrow point to be argued. That narrow point has been stated by him in the transcript and recorded there. I have rephrased it to say that it is whether the debt in question with its incidental rights is capable of being assigned at law or in equity. That is the point to which the appeal will be limited. Upon that basis I have decided to grant the stay to which I refer. Secondly, Mr Kelly has tendered as Exhibit A a letter of 24 February 1995 in which security is offered in support of the application. The order I make is that upon the basis that the matter is to be confined to the point recorded in the transcript and upon the basis of the grant of security as contained in the letter of 24 February 1995 I order that execution upon the judgment be stayed until the hearing of the appeal or further order of this Court. The costs of this application, unless counsel have anything to offer to the contrary, should be paid by the unsuccessful party to this application, namely the respondent. I make those orders accordingly. So far as the expedition of the appeal is concerned, I will direct that the appeal be expedited and limited to the narrow point to be argued. Orders accordingly.