GALLUZZO v SINCLAIR [1995] NSWCA 162

GALLUZZO v SINCLAIR SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KIRBY P 6 March 1995

[1995] NSWCA 162

PRACTICE AND PROCEDURE — Court of Appeal — stay of execution of judgment — judgment founded on primary judge's (Spender AJ) disbelief of claimants — claimants not legally represented — whether appeal hopeless — whether stay genuinely for furtherance of appeal or to gain time to pay judgment moneys — held (per Kirby P): A stay of execution should be granted upon terms (a) that an unconditional notice of appeal be filed within six weeks; and (b) that within that time, $100,000 as security be deposited with the Registrar.

Kirby P. On 9 November 1994 Spender AJ gave judgment in favour of Mrs Amanda Sinclair against Mr Salvatore Galluzzo and Mrs Vincenza Galluzzo. Mr and Mrs Galluzzo are before me today. They have been assisted by their daughter, Mrs McMillan, who has spoken to the Court with their consent on their behalf. They seek a stay of execution of the judgment. Their application is opposed.

It is unnecessary for me to detail the dispute between the parties. It is recounted in the judgment of Justice Spender AJ. It revolved around the knowledge of Mr and Mrs Galluzzo concerning the circumstances in which, and nature of the obligations that, they incurred the debt to Mrs Sinclair. They effectively said that they did not understand what they were signing because of their poor English. However, Spender AJ did not accept this defence. He said that Mr Galluzzo spoke English in an unsophisticated but passable way, andthat the denial by Mrs Galluzzo of her signature was a 'clumsy fabrication'. It is self-evident that these findings will be extremely difficult for Mr and Mrs Galluzzo to disturb on appeal, having regard to the repeated instruction of the High Court of Australia in such cases as Abalos v Australian Postal Commission (1990) 171 CLR 167 , 178f and other like cases. I have explained these difficulties to Mrs McMillan. She has undertaken to explain them to her parents.