Touma v Sparas [1999] NSWCA 298

New South Wales Court of Appeal CITATION : Touma v Sparas [1999] NSWCA 298 FILE NUMBER(S) : CA 40283/99 HEARING DATE(S) : 19 July 1999 JUDGMENT DATE : 19 July 1999

Daniel Touma PARTIES : v Carmen Regina Sparas JUDGMENT OF : Mason P at 1

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 5935/98 LOWER COURT JUDICIAL OFFICER : Delaney DCJ

COUNSEL : C: N Gye O: M Abdul-Karim SOLICITORS : C: MT Bechara & Co, Ashfield O: Jeffrey Hinde & Associates, Double Bay CATCHWORDS : Application to stay execution of judgment - No question of principle DECISION : Summons dismissed with costs

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA 40283/99 DC 5935/98

MASON P July 19, 1999

Daniel TOUMA v Carmen Regina SPARAS

JUDGMENT

1 MASON P: This is an application to stay execution of a judgment entered by Delaney DCJ in March of this year. 2 The opponent claimed $138,000. The principal evidence in support of the claim that money had been lent to her by the claimant was a signed IOU. The proceedings were not brought as on an IOU but based upon an antecedent contract. 3 The opponent was a litigant in person at least for some of the litigation. The particulars that were promptly sought in late 1998 were supplied in part, further particulars (now accepted to be sufficient particulars) were ultimately supplied two days before the hearing date. There had been an application for expedition apparently made ex parte but it resulted in the trial date in March being set down, to the knowledge of the claimant, approximately one month before that date. 4 There were two applications for adjournment - perhaps more than two - based in the main part on the late supply of the particulars. One was made on the hearing date. The applications were refused and the case proceeded, effectively ex parte, although counsel for the claimant was offered the opportunity to cross-examine the claimant on her written statement and oral evidence and he declined to do so. 5 The mere filing of an appeal does not entitle the judgment debtor to a stay. Circumstances must be established to show that it is just that a stay be granted. 6 It is always relevant to remind oneself that in the event of a successful appeal the Court has power to order restitution against the judgment creditor, who has, in the meantime, received payment of the judgment debt. 7 No evidence has been adduced to show that the claimant is in parlous financial circumstances or that the opponent's financial circumstances are such that she would be unable or unlikely to provide restitution in the event that the appeal was successful. 8 I do not think that it is desirable that I say too much about the prospects of success in the appeal on what appears to be the key issue, namely whether or not his Honour and other Judges of the District Court erred in the exercise of their discretion to refuse the various adjournment applications. Suffice it to say that I am far from satisfied that this is a strong appeal case. 9 Having regard to my assessment of the appellant's prospects and the other matters touching the nature of the appeal, and the restitutionary rights of the claimant and the financial position of the opponent, the application is refused. 10 I dismiss the summons with costs. * * * * * * * * * *