MANGRAVITI AND ANOR v TRIDEN CORPORATION LTD [1998] NSWCA 135

MANGRAVITI v TRIDEN CORPORATION LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL BEAZLEY JA 23 February 1998

[1998] NSWCA 135

Beazley JA This is an application that the effective determination by the costs assessor made on 6 February 1998 be stayed until disposal of the appeal proceedings. In support of the stay, Mr Brereton, on behalf of the claimant/appellant, relied upon two grounds of appeal in particular, indicating that this is a case where there is an arguable appeal and does not make reference to the remaining appeal grounds which he concedes may be unacceptable in order to have the Court interfere with the judgment.

The essential thrust of his submissions in support of the application for a stay is that unless the costs order is stayed, the likelihood is that the opponent/respondent will move for execution, presumably by way of bankruptcy. So that for all practical purposes the appeal will be rendered nugatory. I say for all practical purposes because I have come to recognise that if bankruptcy proceedings do subsume and a_ sequestration order is made, the claimant/appellant's affairs will be placed in the hands of a trustee and the decision whether to pursue the appeal will become the trustee's decision rather than Mr Mangraviti's decision.

That decision will undoubtedly be based upon two factors. One, the trustees view as to the strength of the appeal, but I think more fundamentally and practically, whether or not the trustee is funded for the purposes of bringing the appeal. There is no evidence as to whether he would or would not be funded but if one has regard to Mr Mangraviti's financial position, as indicated in his affidavit dated 9 February 1998, it is a reasonable inference that Mr Mangraviti might not be in the position to fund the appeal.

The only other consideration in the case is the view I form as to the strength of the appeal. Mr Brereton does not seek to put his case higher than ground one and ground six, not all of the six grounds being arguable. That seems to me in both cases the determination of his Honour was dependent upon the discretion which he had.