BURNS PHILP TRUSTEE COMPANY LIMITED v CLARKE [1996] NSWCA 82

BURNS PHILP TRUSTEE COMPANY LIMITED v CLARKE SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY P 29 April 1996

[1996] NSWCA 82

Mahoney P. This is an application for a stay of execution upon a judgment. I am informed that the plaintiff, Mr Clarke, was injured on 14 April 1985; that the defendant company was wound up on 3 December 1990; that on 17 November 1995 a verdict was given in favour of the plaintiff — as I shall describe him — Mr Clarke, for some $276,737, that being assessed upon the basis of a degree of contributory negligence; and that on 13 December 1995 a notice of appeal was filed by the defendant company. A previous application for a stay of execution upon the judgment was made by the defendant company on 20 March 1996 and I understand that thereafter, I think on 1 April 1996, that application was dismissed.

An application for a stay is now made, a further application dated 23 April 1996, and in this case an offer is made — I put the matter in general terms — to provide some $35,000 by way of payment to Mr Clarke in part discharge of the judgment pending the appeal.

The question that arises is whether a stay should be granted on those terms. The application for a stay previously made and refused was made without such an offer.

The principles upon which a stay is granted or refused in circumstances of this kind are not in dispute. Generally speaking a plaintiff may expect to receive his verdict. But where an appeal has been lodged raising genuine issues, particularly if going to liability, then that is a weighty matter to be taken into account by the Court in determining whether a stay is to be granted.

In the present case the notice of appeal goes only to, as I shall describe them, issues of liability. However, it has not been put that the issues raised are not such as to give rise to a bona fide dispute proper to be dealt with as on appeal. I am informed that a cross-appeal has been filed on behalf of Mr Clarke going essentially to the issue of contributory negligence.