MITTAGONG MUSHROOM PTY LIMITED v NARRAMBULLA ACTION GROUP INC [1997] NSWCA 209

MITTAGONG MUSHROOM PTY LIMITED vy NARRAMBULLA ACTION GROUP INC

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MASON P 24 March 1997

[1997] NSWCA 209

Mason P. I propose to grant an order for stay in this matter.

Iacknowledge the force of the submission of Mr Lancaster about the evidence. However, I think that the real issue, or the real sub-issue, which I should pose is whether there is a significant risk that the costs order if paid would be irrecoverable under an order for restitution in the event that the appeal was successful.

Having regard to the evidence of the state of affairs of the opponent in 1995 which has not been updated by either party and the grant of Legal Aid and the capacity of a body structured as this one is to disburse funds properly but in such a way as to make recovery of substantial moneys impossible, I think there is a significant risk that if the costs order is paid it could not be recovered.

I view this case as having reasonable prospects of success. Obviously I am notthe same relief that the other respondents to the original proceedings were seeking, it was incumbent on it, being aware of the application, to join in it, not just to consent to it. Obviously the Council may bring its own application, but it may find itself met with an argument as a matter of discretion that it sat by and it is too late, but I express no concluded view on that ground.

For those reasons I stay order 3 of the orders made on 8 November 1996 so far as concern the claimants to the present motion.

I order the costs of this motion to be the costs in the appeal.

Orders accordingly.