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. An affidavit in support of a stay of execution of the judgment has been read by Mr and Mrs Galluzzo. It is sworn 24 January 1995. This deposes to efforts by a son-in-law and daughter, Mr and Mrs Steel, who are resident, apparently, in Saskatoon, Canada, to try to obtain financing. The affidavit states that this is for the purpose of repaying Mrs Sinclair 'so we may continue to live in the house'. I am informed that the total debt now owed on the orders of Spender AJ is $250,000. The value of the house is said to be of the order of $270,000. Accordingly, when allowance is made for the costs of the trial, it is clear that the present value of the house only approximates the total amount to which Mrs Sinclair is entitled by virtue of the judgment. Placed before me today is some material from banks which indicates that, within a very short time, they will make decisions as to whether they will provide a loan to Mr and Mrs Steel for Mr and Mrs Galluzzo. The claimants are, so I have been informed, pensioners. They would therefore have difficulty themselves in raising funds. I assume that Mr and Mrs Steel are in receipt of income. I was told, although not by formal evidence, that Mr Steel has his own business in Canada. 2 UNREPORTED JUDGMENTS It was said that it could be expected that Mr and Mrs Steel would have negotiated with the banks within a short time. The letter from Westpac Banking Corporation, exhibit B, indicates that that bank expected to have a decision on their application within two weeks of 2 March 1995. It was submitted that the appeal was hopeless. I certainly agree that it looks extremely difficult. However, I have not had the time to consider it at length so as to determine whether it is hopeless. Such is not necessary in the nature of this application. It was then put that the real purpose of the stay was to provide time for the raising of the funds and not to protect a true appeal. Certainly paragraph 2 of the affidavit of Mr and Mrs Galluzzo indicates that such may indeed be their intention. They state that they will be seeking finance 'so that they can repay Amanda Helen Sinclair'. However, I do not believe that the affidavit should be read strictly. Mr and Mrs Galluzzo are not legally represented before me. I am inclined to accept that they intend to pursue their appeal, as is their right by law. What I have to do is to consider their application for a stay and, if I grant it, to do so upon terms which are fair to Mrs Sinclair, who has been kept out of her money. She has been held by a judge of this Court to be entitled to her money. The debt is accumulating every day. A fair balance between the rights of Mr and Mrs Galluzzo to appeal, on the one hand, and the claim of Mrs Sinclair to her judgment, should be made. Under the Rules of Court, this will require that, by 18 April 1995, Mr and Mrs Galluzzo file their notice of appeal. So far they have merely filed an appeal without appointment. They will be required under the Rules to formalise their appeal by 18 April 1995. That date is approximately six weeks from today. They should also be put to the test by the obligation, within that time, as warrant of their serious intention to pursue the appeal, to find $100,000 and to deposit that sum in a form reasonably acceptable to the Registrar of this Court by 18 April 1995. It should be provided in cash, or equivalent or by the deposit of a banker's instrument which will ensure that the fund is in court to abide the outcome of the Court's ordersin the appeal. The orders which I therefore make are: (1) Stay execution of the orders and judgment of Spender AJ dated 9 November 1995 upon the following terms — (a) that on or before 18 April 1995, the claimants, Salvatore and Vincenza Galluzzo, file their appeal against such orders; and (b) that on or before 18 April 1995, in a form reasonably acceptable to the Registrar of the Court of Appeal, the claimants deposit with the Registrar, in cash or by appropriate bank security, the sum of $100,000 to abide the outcome of the appeal; (2) Order that the costs of this motion be costs in the appeal; (3) Grant liberty to either party, upon one day's notice to the other, to restore this matter to the motion list of the Court, on the next succeeding Monday, should it be necessary to seek further orders; and (4) In the event that the appeal is filed and security provided in accordance with my orders, direct that the hearing of the appeal have expedition and that it be heard within a period of four months. I make it clear to Mr and Mrs Galluzzo that if either of the conditions which I have laid down are not complied with, the Court will consider an application, after 18 April 1995, for the dismissal of the appeal for want of prosecution and the stay of execution of judgment will thereupon be lifted. URJ GALLUZZO v SINCLAIR (Kirby P) 3 qd) (2) (3) (4) Stay execution of the orders and judgment of Spender AJ dated 9 November 1995 upon the following terms - (a) that on or before 18 April 1995, the claimants, Salvatore and Vincenza Galluzzo, file their appeal against such orders; and (b) that on or before 18 April 1995, in a form reasonably acceptable to the Registrar of the Court of Appeal, the claimants deposit with the Registrar, in cash or by appropriate bank security, the sum of $100,000 to abide the outcome of the appeal; Order that the costs of this motion be costs in the appeal; Grant liberty to either party, upon one day's notice to the other, to restore this matter to the motion list of the Court, on the next succeeding Monday, should it be necessary to seek further orders; and In the event that the appeal is filed and security provided in accordance with these orders, direct that the hearing of the appeal have expedition and that it be heard within a period of four months. Counsel for the claimants: In person (represented by their daughter: Mrs McMillan) Solicitors for the claimants: In person Counsel for the opponent: MA Bradford Solicitors for the opponent: Hunt Musgrave and Peach