New South Wales Court of Appeal CITATION: Mitry v Business Australia Capital Finance Pty Ltd (in liquidation) [2010] NSWCA 87 HEARING DATE(S): 19 April 2010 JUDGMENT OF: Macfarlan JA EX TEMPORE JUDGMENT DATE: 19 April 2010 Orders: DECISION: (1) That the judgment of Neilson DCJ delivered on 22 February 2010 be stayed until further order of the Court; and (2) Costs of the stay application be costs of the appeal. CATCHWORDS: PROCEDURE - stay of proceedings pending appeal - no issue of principle CATEGORY: Procedural and other rulings CASES CITED: Kalafair Pty Ltd v Digitec Australia Ltd [2002] NSWCA 383; (2002) 55 NSWLR 737 PARTIES: Richard Mitry (Applicant) Business Australia Capital Finance Pty Ltd FILE NUMBER(S): CA 2010/00056308 COUNSEL: A Rogers (Applicant) M J Zwar (Solicitor for Respondent) SOLICITORS: Mitry Lawyers (Applicant) McLachlan Chilton (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): DC 3634/2008 LOWER COURT JUDICIAL OFFICER: Neilson DCJ LOWER COURT DATE OF DECISION: 22 February 2010 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2010/00056308 MACFARLAN JA MONDAY 19 APRIL 2010 RICHARD MITRY v BUSINESS AUSTRALIA CAPITAL FINANCE PTY LTD (IN LIQUIDATION) Judgment 1 HIS HONOUR: In this matter a stay of proceedings is sought in relation to a judgment of Neilson DCJ. The effect of the adjournment is that the appellant is required to pay to the respondent a sum in the order of $202,000. The respondent is a company in liquidation. It is accepted by the respondent's counsel that the administration is basically without funds and the material that has been put in evidence supports the view that that is the position. 2 There has been some discussion of the merits of the appeal. The appellant contends that the appeal is a strong one. The respondent says that there is no serious issue to be tried. It is not appropriate for me to descend into the detail of the merits of the appeal but I am able to say that in my view the appeal is arguable and that it cannot be said that there is no serious issue to be tried. 3 I recognise the prima facie entitlement of a party in whose favour judgment has been given to the fruits of that judgment but in my view in this case there is a real risk which is apparent on the evidence that if the appellant pays the amount of the judgment to the respondent, the appellant will not be able to recover the amount paid in the event that the appellant is successful on the appeal. 4 As I have said, the respondent is a company in liquidation. There has not been any undertaking forthcoming from the liquidator of the respondent to, in some way, secure restitution to the appellant of any funds he pays to the respondent. I do not suggest that such an undertaking is essential but it would have been one way in which the present motion could have been responded to. The fact is that no security for repayment has been offered to the appellant. 5 On the other side of the ledger there is no evidence of the inability of the appellant to pay the amount of the judgment. Thus, there is no basis on the evidence for concluding that if the respondent is not permitted to enforce the judgment now but is only permitted to do so in the event of success by the respondent on the appeal that the respondent's position is likely to be prejudiced. The existence of prejudice of that type on the basis of the evidence that is before me is simply a matter of speculation and I am not prepared to assume in the absence of evidence that such potential prejudice exists. 6 The principles to be applied in this context have been stated in Kalafair Pty Limited v Digitec Australia Limited [2002] NSWCA 383; (2002) 55 NSWLR 737 which has been followed on a number of occasions in this Court. In my view, it is appropriate for an order for a stay to be made and I, accordingly, propose to make such an order. 7 I make orders in accordance with paragraphs 1 and 2 of the notice of motion dated 16 March 2010. That is, order (1) that the judgment of Neilson DCJ delivered on 22 February 2010 be stayed until further order of the Court and (2) costs of this application be costs of the appeal. ********** 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.