THANH v HUYNH [1997] NSWCA 309

THANH v HUYNH

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MEAGHER JA 19 May 1997

[1997] NSWCA 309

Meagher JA. This is an application for a stay of judgment by Dr Le Tan Thanh and his wife, the judgment in question is a judgment of Young J of 5 September 1996.

In effect Dr and Mrs Thanh sued Mr Huynh to recover moneys advanced by them to Mr Huynh, Mr Huynh cross-claimed to recover consultancy fees for work done by him on account of Dr and Mrs Thanh. His Honour was not entirely satisfied about the credibility of either the plaintiffs or the defendant. He was more critical of the plaintiffs whom he entirely disbelieved, than of the defendant whom he partially disbelieved. In any event, his Honour ended up by ordering the plaintiffs to pay the judgment of $212,000 to the defendant Mr Huynh.

An application for a stay was heard by Registrar Jupp who gave judgment on 13 January 1997. Mr Jupp granted a stay though in a judgment which bristled with indications that he was perhaps not fully justified in doing so. He granted the application for stay to last four months, and indoing so indicated that no further grant of a stay should be made unless conditions set out by him were complied with.

The present application for a stay, which comes before me shortly after the expiration of the four months indicated by Mr Jupp, involves an application made on behalf of Dr Thanh and his wife by Mr Meek who has very frankly put before the Court everything that can be put on behalf of his clients by being perfectly frank in acknowledging the weakness of their position. If one considers the question of the probable success of the appeal, it is far from clear that the chances of the appellants are great. Most but not all of the grounds of appeal concern challenges to credibility, to which the chance of successfully contesting is very slight. Even on the other grounds it is difficult to see that they would if successful really alter the balance of his Honour's judgment, at least to any marked degree.