LAWS v COLLINS EXPOSED AGGREGATE PTY LTD [1996] NSWCA 316

LAWS v COLLINS EXPOSED AGGREGATE PTY LTD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY JA 5 February 1996

[1996] NSWCA 316

Mahoney JA. This is an application for a stay of order for payment of costs. In the hearing of this matter by Grove J orders were made involving the first defendant paying the plaintiff $53,550. Orders were made for costs, the relevant order being order 4, namely that the plaintiff pay the second defendant's costs of the action. It is against the background of that that the present application is brought.

Steps have been taken to bring the appeal against Grove J's orders on for hearing and I am told the hearing has been listed for some time in April this year.

Ihave been referred to the terms of the notice of appeal which appear on pages 675 and 676 of the appeal papers which have been placed before me. Those grounds of appeal do not purport to support an appeal against the order for costs, order 4, which was made by Grove J. There is amongst the orders sought an order numbered 5:

Order that the appellant and each of the respondents bear their own costs in the proceedings below'but nothing is urged in the appeal by way of grounds to support any such order. There is in substance at the moment no appeal against that particular order. I say that in the sense that nothing has been urged in support of that ground of appeal.

When this matter was referred to Mr Gruzman's attention he sought leave from the Court to add a further ground providing in effect for an appeal against the failure of his Honour to make, as has been described, a Bullock order rather than the order set forth in paragraph 4. It is upon the basis of that application that it is claimed that a stay should be granted at the execution of the costs order, order 4, made by Grove J.

The case is obviously in an unsatisfactory position for that purpose. Prima facie, a person who obtains orders is entitled to have them executed notwithstanding the existence of an appeal against the orders. The Court has taken the view — and I put the matter very generally and without detailing the qualifications and exceptions involved — that where there is a genuine appeal against orders, the Court will ordinarily (and sometimes subject to terms) grant a stay of execution of the orders. In the present case there is, as I have said, no appeal against the orders and the amendment of the notice of appeal to deal with costs has been opposed.