New South Wales Court of Appeal CITATION : LEDA COMMERCIAL PROPERTIES PTY LTD v MISHEVA [1999] NSWCA 92 FILE NUMBER(S) : CA 40125/99 HEARING DATE(S) : 29 March 1999 JUDGMENT DATE : 29 March 1999 PARTIES : Leda Commercial Properties Pty Ltd - Cl Elena Misheva - Opp JUDGMENT OF : Sheller JA LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 9597/97 LOWER COURT JUDICIAL OFFICER : Hogan ADCJ COUNSEL : H Halligan - Cl K Andrews - Opp SOLICITORS : Colin Biggers & Paisley - Cl McBride Harle & Martin - Opp CATCHWORDS : PRACTICE & PROCEDURE - APPLICATION FOR STAY - CIRCUMSTANCES WHERE STAY APPROPRIATE - EVIDENCE OF LIKELY SUCCESS OF APPEAL CASES CITED: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 DECISION : Stay granted on conditions THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40125/99 SHELLER JA Monday, 29 March 1999 LEDA COMMERCIAL PROPERTIES PTY LIMITED v MISHEVA JUDGMENT 1 SHELLER JA: The claimant, Leda Commercial Properties Pty limited, applies by notice of motion for a stay of the judgment of Acting District Court Judge Hogan delivered on 5 February 1999, as amended on 25 February 1999. 2 On 5 March, the claimant, which is the unsuccessful defendant in those proceedings, filed a notice of appeal in this Court. The proceedings arose out of an accident which occurred in May 1995 at premises that were conducted or under the control of the claimant when the opponent and plaintiff, Elena Misheva, slipped on the floor, fell and injured herself. She brought the proceedings to recover damages for negligence. 3 In support of this application the complainant relies upon the affidavit of Mr Greenhalgh of 19 March 1999 which, in brief form, refers to the judgment and the filing and service of the notice of appeal. Apparently, the opponent also filed a notice of appeal but that has been withdrawn. The claimant also relies upon the notice of appeal and the judgment of Acting Judge Hogan of 5 February 1999 which was handed up to me. The claimant has also referred to a second amended statement pursuant to Pt 12 r 4 (a) of the District Court Rules. 4 The principles upon which a stay should be granted by this Court are well recognised and conveniently set out in Alexander v Cambridge Credit Corporation Limited (1985) 2 NSWLR 685, particularly at 694 and 695. 5 An application for a stay was made to Acting Judge Hogan and was refused. I do not have the benefit of the learned Acting Judge's reasons for that refusal. 6 The material placed before me is not satisfactory for an application of this sort. It seems to me that the claimant has to show in this sort of case that there is a risk that the appeal will prove abortive if the appellant succeeds and the stay is not granted. 7 It has been stated from the bar table that it has not been possible in the time available to obtain the transcript or to obtain any other information about the plaintiff's financial position beyond what one can infer from the Pt 12 statement. Amongst other things, that indicates that the plaintiff had a claim for out of pocket expenses of something in the order of $34,000, which amount was part of the overall judgment of $290,340 which was awarded to her. 8 It is submitted that if one accepts without challenge the findings made by the trial Judge there is a live question as to whether the claimant should have been held to have been negligent or whether its servant cleaner did all that could have been done to remedy the situation of danger caused by a spillage. Alternatively, it is submitted that on the facts as found there was evidence of contributory negligence which again should sustain prospects of success of appeal. His Honour refused to find contributory negligence by the plaintiff. 9 Mr Andrews, who appears for the plaintiff, says that this application would not be opposed if a stay was conditional upon the claimant paying within a reasonable time half of the verdict to the plaintiff. 10 I am not impressed by material before me as indicating that the claimant would be prejudiced to an extent by the refusal of a stay that nothing should be paid on account of the verdict to the plaintiff. In my opinion, the appropriate order is that a stay be granted upon condition that the claimant pays to the opponent 50 percent of the amount of the verdict within twenty-one days of today. 11 The order of the Court will be that on condition that the claimant pay to the opponent the amount representing 50 percent of the judgment given by Acting Judge Hogan, the execution of the balance of the judgment is stayed until this appeal is disposed of or further order. The costs of this application will be costs in the cause. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.