SANDERSON MOTORS PTY LIMITED v SINGH SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL PRIESTLEY JA 6 February 1995 [1995] NSWCA 414 Priestley JA. In this matter Sanderson Motors seeks a stay of a judgment given against it by Acting District Court Judge Kennedy-Smith. The orders that his Honour made were that Sanderson should deliver a specified motor car to the plaintiff before 4 November 1994 and that there should be a verdict for the plaintiff for consequential damages in the sum of $68,561. This figure was worked out by reference to the interest that would have been payable on $40,000 from 1 December 1992 to the date of judgment. $40,000 was the value that his Honour fixed for the vehicle, delivery of which was the subject of the first order that he made. Following leave being granted today to Sanderson to file an amended notice of appeal, it was agreed by counsel for the opponent, the plaintiff in the District Court, that the notice of appeal could not, as a whole, be struck out as incompetent. For Sanderson it was contended that if no stay were granted of the orders made by the trial judge and if Sanderson were to succeed in the appeal, there is a risk that Sanderson would not be able to obtain restitution for its having satisfied the District Court orders if that satisfaction were given or enforced before the Court of Appeal decision. In the absence of some special circumstance it is, therefore, desirable that that possibility be avoided by staying execution on the District Court orders until the decision on the appeal has been given. This consequence was opposed by counsel for the successful plaintiff in the District Court. Amongst the material put before the court there was considerable material indicating that the fact that the case of the defendant at the hearing in the District Court was not fully presented and not all the material the defendant wished to have before this Court was before that court, was no fault of the plaintiff and no fault of the court. There is other material showing that the defendant had been significantly tardy in complying with pre trial orders made against it and in otherwise preparing for trial. In the circumstances I do not think I should order the stay without conditions. The condition which I impose is that the appellant lodge security to the satisfaction of the Registrar of the Court of Appeal within 21 days from today for the sum of $108,561.66. If security for that sum is not lodged with the Registrar to his satisfaction within 21 days from today, the stay of the District Court orders which I now order will then lapse. (Counsel addressed on costs.) I think a fair order in the circumstances is that the costs of the application be the respondent's costs in the appeal. Orders accordingly.