GOODWIN v DUGGAN [1996] NSWCA 222

GOODWIN v DUGGAN

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA 4 April 1996

[1996] NSWCA 222

Priestley JA. This is an application for a stay of the Orders made by Simos J on 15 December last, from which an appeal has been brought, and also for an Order that the hearing of the appeal be expedited.

In considering whether or not a stay should be granted the factors on either side are to my mind fairly even balanced. On the basis of the material that's before me it seems to me that if the appeal is to fail then the need of the respondent to have the benefit of the proceeds which will come to her as a result of Simos J's Orders is quite severe. If the appeal were to be upheld then for the Orders of Simos J to have been carried out in the meantime would be likely to have caused hardship of various kinds to the appellant.

The difficulties in this situation are to a large extent reduced by the availability of an early hearing date. The case seems to me to be one extremely suitable for expedition and I order that the hearing of the appeal be expedite and that it be fixed for hearing on 23 May 1996. The closeness of the hearing date reduced the difficulties in regard to the granting of a stay. An undertaking has been offered which safeguards the interests of the opponent respondent to a considerable extent.

In view of the undertaking and of the comparatively short period before the appeal should be determined, it seems to me that the balance of convenience lies in granting a stay of Simos J's Orders until the disposal of the appeal.

Counsel for the opponent has indicated opposition to the granting of a stay. In light of the availability of the early hearing date and the intimation of my views about a stay in consequence of that availability, counsel did not withdraw his opposition, but did not abandon the viewpoint of his client that no stay should be granted. He reserved his right in the event, which I do not think will happen, that the appeal did not go forward on 23 May to renew his opposition to the stay and to argue then that the stay should not be continued without that argument being prejudiced by his attitude today. It seems to me that in the unlikely event that the appeal does not proceed on 23 May, then the Court would be obliged to consider on the merits as they then appeared the question whether the stay should be continued. What had happened in the past would not be of any particular significance. The question would be what the facts were relevantly to the granting of or withholding of any further stay at that date.