AWADALLAH -y- R W & P BROWN PTY LTD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL STEIN JA 2 March 1998 [1998] NSWCA 27 Stein JA. This is an application for a stay by the appellant, Stacey Awadallah, against orders made by Judge Sinclair QC in the District Court on 3 March 1997. In proceedings between Brown Builders Pty Ltd (the respondent to the appeal in this Court) and Reda Awadallah and the present appellant, his Honour gave judgment for the plaintiff, (Brown Builders) in the sum of $34,718, as well as making orders as to costs of the proceedings. It seems that Reda Awadallah and the present appellant are estranged. Reda Awadallah is not an appellant from the orders of Judge Sinclair and has been joined as a respondent to the appeal. The notice of motion of Stacey Awadallah, who has appeared in person, sought to stay a bankruptcy notice served on her by Brown Builders. That notice of motion has been amended to extend to an application for a stay of the judgment of Judge Sinclair and there was no opposition to this amendment by Mr Martin on behalf of the respondent, Brown Builders. The basis of the application for the stay is really, I think, twofold. One is that the principal grounds of appeal, paras | to 7, claim that the appellant never entered into any contractgrounds of appeal, paras 1 to 7, claim that the appellant never entered into any contract with Brown Builders and nor did Reda Awadallah enter into any agreement with Brown Builders on her behalf. Ms Awadallah says that everything that happened between Reda Awadallah and Brown Builders was between them and she had no part in it in any way, shape or form. There are other grounds of appeal relating to legal advice to the appellant, which at first blush do not seem to be relevant to the appeal. They make a claim for negligence against the appellant's previous legal representatives. The notice of appeal also includes ground No. 10, whereby Stacey Awadallah seeks to rely on the hearing of the appeal on what is described as "fresh evidence" which was not produced to the Judge below and would, if it had been produced or available, made a difference to the decision. In support of this application, the claimant submits that if the stay is not granted she will be made bankrupt and will not be able to pursue her appeal and unable to defend a judgment and debt which she says was not hers in any way, but that of her estranged husband Reda Awadallah. She says from the bar table that she has no real means or assets. Mr Martin, on behalf of the respondent, points to documents in the District Court proceedings, in particular an affidavit verifying the defence by this claimant, (together with Reda Awadallah). He submits that the appeal is hopeless and has no chance of success and also relies on the delay since 3 March 1997 in his client being able to obtain the proceeds of the judgment. He expresses concern, without evidence, that either Stacey Awadallah or Reda Awadallah will so deal with their assets as to deprive the judgment creditor of a remedy. 2 UNREPORTED JUDGMENTS T explored with Mr Martin the possibility, bearing in mind that the hearing of this appeal has been set down as a short appeal for 28 April 1998, that he may obtain instructions not to oppose a stay, or if a stay was refused, to give certain undertakings, either between parties or to the court, not to execute prior to the disposal of the appeal on 28 April. His instructions do not extend to this but he did indicate that he would have instructions to agree not to proceed with the creditor's petition, that is to hearing, pending the appeal if the claimant sought an adjournment of the petition. I do not find this application for a stay particularly easy to resolve but I have come to the conclusion that because the hearing of the appeal is so close, it would be in the interests of justice to the claimant to grant a stay. If a stay is not granted, it is apparent that the appeal would not be able to proceed. Ms Awadallah would not be in a position to have her day in court and run her argument contained in grounds | to 7 of the notice of appeal that she was never a party to any agreement. Accordingly, I grant a stay of the judgment and orders of Judge Sinclair of 3 March 1997 as they relate to the appellant, Stacey Awadallah, pending the hearing and disposition of the appeal. As to costs, I think that the costs of the notice of motion should be the respondent's costs in the appeal and I so order. Orders accordingly.