NIKOLAY MALAKHOV SHIPPING CO LIMITED v SEASSAPFOR LIMITED [1997] NSWCA 224

NIKOLAY MALAKHOV SHIPPING CO LIMITED v SEASSAPFOR LIMITED

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

PRIESTLEY JA 15 September 1997

[1997] NSWCA 224

Priestley JA. Before the court there are three notices of motion arising from a judgment given by Hunter J against the defendant in proceedings before him, that judgment amounting, I am told, to something in the order of $70,000. The unsuccessful defendant having filed a Notice of Appeal has sought a stay of execution of the judgment pending the hearing of the appeal.

In view of the circumstances of which the court has become aware, both from the material before the court and from what counsel have said, it seems to me appropriate to grant a stay of execution of the judgment below until the termination of the appeal proceedings on condition that the appellant lodge security for the whole of the judgment amount within 21 days from today. That security to be security to the satisfaction of the Registrar.

There are other conditions which are to be imposed upon the appellant. It will be easier to deal with them in regard to the second Notice of Motion before the court, which was a Notice of Motion by the respondent for security for costs of the appeal.

As matters developed the court was told of what amounts to, in the end, an agreement concerning security for costs; the amount was agreed and a condition of the appeal going forward is that security in the amount agreed upon be furnished by the appellant to the satisfaction of the Registrar.

The third matter before the court was an application by the respondent to have the appeal struck out as incompetent. The first two grounds of the application were of a technical nature, which I do not think I need to go into. They do not appear to me to require or to go any significant distance towards justifying my striking out the Notice of Appeal as incompetent.