Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Coles Supermarkets Australia Pty Ltd v Clarke [2012] NSWCA 428 Hearing dates: 3 December 2012 Decision date: 03 December 2012 Before: Ward JA Decision: Dismiss Notice of Motion for stay of District Court judgment, with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PRACTICE AND PROCEDURE - application for stay of judgment pending appeal - no evidence of respondent's means Cases Cited: Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 Chen v Lym International Pty Ltd [2009] NSWCA 121 McBridge v Sandland (No 2) (1918) 25 CLR 369 Trad v Harbour Radio Pty Ltd [2010] NSWCA 41 Category: Interlocutory applications Parties: Coles Supermarkets Australia Pty Ltd (Appellant) Philip Clarke (Respondent) Representation: Counsel: R Weaver (Appellant) C A Evatt with R K Rasmussen (Respondent) Solicitors: McCulloch and Buggy (Appellant) Beazley Singleton (Respondent) File Number(s): CA 12/266856 Decision under appeal Citation: [2012] NSWDC 107 Date of Decision: 2012-07-31 00:00:00 Before: Levy DCJ File Number(s): 10/296700 Judgment (ex tempore) 1HER HONOUR: This is an application pursuant to a Notice of Motion filed on 25 October 2012 by Coles, seeking a stay of a judgment of Levy DCJ (which judgment is the subject of an application in this Court for leave to appeal). 2It is contended by Coles, which was unsuccessful in defending proceedings in defamation brought by Mr Clarke in the District Court, that there are strong grounds of appeal. (For completeness I note that I was taken to a document marked Exhibit B in this motion which was a handwritten statement by the appellant. I was invited to infer, from the "florid nature of the document", that there was sufficient likelihood of success of the appeal which would support the appellant's stay application.) 3The intended grounds of appeal as set out in the notice of appeal cover four areas: whether the findings of his Honour were against the weight of the evidence; whether his Honour should have permitted cross-examination in relation to a particular document; whether his Honour should have relied on a particular document in relation to the claim; and as to what is contended to be the excessive amount of the award. 4While the absence of reasonably arguable grounds of appeal is likely to be a determinative consideration against a stay application (Chen v Lym International Pty Ltd [2009] NSWCA 121; Trad v Harbour Radio Pty Ltd [2010] NSWCA 41; Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685), the existence of reasonably arguable grounds of appeal is not necessarily sufficient to justify the grant of a stay (McBridge v Sandland (No 2) (1918) 25 CLR 369). 5In the ordinary course a judgment creditor is entitled to the benefit of the judgment and the judgment is presumed to be correct until an appeal succeeds from the judgment. 6There was no evidence as to the respondent's means (though I was taken to an extract from the transcript of the proceedings below to suggest that these might be limited). It was submitted that I could form the view that there is a risk that if the stay were not granted (and the application for leave to appeal and the appeal itself were to be successful) then Coles may not be able to recover amounts paid out in accordance with the judgment. However, I am not satisfied that the material before me sufficiently establishes that refusal to grant the stay would render the appeal futile and I note that refusal to grant the stay is unlikely to cause Coles to incur a significant financial burden in paying out the judgment debt. 7I am not satisfied that it is appropriate in the circumstances to grant the stay that has been sought. I dismiss the notice of motion with costs. ********** 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. Decision last updated: 13 December 2012