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. The third ground divided itself into two parts. One part said that every ground of appeal was bound to fail. The other part said that the last three grounds in the Notice of Appeal were bound to fail for more reasons than the first group, this being based on quite different considerations as to part of their alleged incompetence from those which concerned the earlier grounds in the Notice of Appeal. In regard to all the grounds of the Notice of Appeal it seemed to me preferable for the notice of objection to competency to be considered at the same time as the appeals are heard, and that it should be stood over to the date of the hearing of the appeal. This is because, first, it seems to me that to decide the objection to competency, in the way I have been asked to do, gets quite close to, if not actually reaching the stage of my deciding the whole appeal in a substantive sense, which is not something a single judge is authorised to do; the other is that if I be wrong in that first view, and it is a matter strictly falling within the competency jurisdiction, to call it that, of a single judge, it nevertheless seems to me that the 2 UNREPORTED JUDGMENTS points to be argued would bemore expediently dealt with all at once by a court of three at the same time as, or immediately before, it deals with the appeal. I indicated in the course of argument that I might impose a further condition on the appellant of strict compliance with the rules concerning getting the appeal ready for hearing and the obtaining of the date for hearing. Mr Street has argued that this is unnecessary and that his client will consent to an order for expedition. That being so I am prepared to make an order for expedition in the present case. It does not fall strictly within the guidelines that have been laid down for expedition hearings but it seems to me that properly managed by directions from the court at an appropriate stage, the appeal is one which should be capable of being dealt with in half a day and, thus, could qualify for being put into the short appeals list which brings about much the same result as the making of an order for expedition. So far as costs are concerned, after hearing argument, my view is that in the event of the appeal failing altogether then the costs of the stay application should not be recoverable by the appellant from the respondent. If, however, the appeal succeeds, then the appellant should have its costs of the stay application. In regard to the respondent's application for security for costs, it seems to me appropriate that each party should be left to bear its own costs, so I make no order for costs in that respect. In regard to the costs of the competency application, then the costs of today should, in my opinion, be costs in the eventual disposition of that competency application by the Court of Appeal after it has heard both the competency application and the appeal. I have deliberately not put the orders into the precise form which I think they need to be put in. So that there is no lack of clarity between the parties subsequently about precisely what has been ordered, I direct that short minutes of the orders be brought in by 2:15 to this court, or earlier by either party if they are agreed to. Orders accordingly.