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. In these circumstances, it might be thought that a stay should be granted. But no evidence is before me which would suggest that if the moneys in question were paid to Mr Clarke he would not, in the event of a successful appeal, be able to repay them. In fact, on his behalf, evidence has been adduced with a view to grounding the submission that if he received the moneys any amount repayable on appeal would be able to be repaid by him. In these circumstances I must exercise what is essentially a discretionary judgment in determining whether a stay should be granted. Nothing has been urged to suggest that there is any hardship upon Mr Clarke if the judgment is not paid. I am left in the position of assuming that nothing could be said in his favour in support of the contention that there would be any prejudice suffered by him in the event of non-payment of the particular amount. 2 UNREPORTED JUDGMENTS Taking all of these circumstances into account, I think that it is appropriate and in accordance with the ordinary practice which is adopted in this Court, that a form of stay be granted. There is, as I have said, a genuine issue to be determined on theappeal and as far as appears, no useful purpose would be served by directing payment of the whole amount at the present time. An offer has been made, in effect, of the payment of $35,000 and I think it is appropriate that the Court act upon that basis. In the circumstances therefore, I am disposed to order that there be a stay of execution on the judgment pending the appeal upon condition that the amount of $35,000 be paid towards the amount of the judgment and that it be paid within an appropriate time which I shall fix. FERNAN: Your Honour, if I might just rise there, the $35,000 has already been paid. HIS HONOUR: That may be so; that is a matter that you can then plead in satisfaction of the conditions, Mr Fernan. Thank you for interrupting me. I am disposed to order that some condition be imposed which would secure that the $35,000 be repaid should the appeal be successful or that it otherwise be dealt with in accordance with the terms of any order that the Court may make. In my opinion the costs of the present application should be reserved to the Court dealing with the appeal in due course. It will be in a position to consider whether the application was justified or meritorious when it has all of the circumstances going to liability and otherwise before it. I will order therefore that the execution of the judgment be stayed pending the hearing of the appeal or further order. It is a condition of the order that $35,000 be paid to the plaintiff towards satisfaction of the judgment and that it be paid within seven days. Any amount already paid may be taken in satisfaction of this condition. The costs of the application are reserved to the Court of Appeal dealing with the appeal. Now that leaves your other application. TABUTEAU: Your Honour, it is appropriate that that motion go no further and that it be dismissed without order as to costs, if I may submit with respect. HIS HONOUR: Have you got any objection to that? FERNAN: Your Honour, we don't seek to put anything to your Honour. HIS HONOUR: Then the application by the plaintiff for leave to proceed against the insurer is, by consent, dismissed. No order as to costs. Orders accordingly.