COUNCIL OF THE SHIRE OF WELLINGTON v BRINCAT [1991] NSWCA 65

COUNCIL OF THE SHIRE OF WELLINGTON v BRINCAT [1991] NSWCA 65

A stay of execution should be granted where the appeal is not hopeless and there is a real risk that the moneys paid may not be repaid if the appellant succeeds, particularly when there is no urgent need for the funds by the respondent.

Parties
Claimant/appellant: Council of the Shire of Wellington; Opponent/respondent: Brincat
Jurisdiction
Australia
Judgment Date
01 July 1991
Procedural Posture
Application for Stay of Execution / Interlocutory
Outcome
Stay of execution granted pending appeal; case to be listed for Registrar's callover; claimant to pay opponent's costs of the motion.
Legal Topics
Stay of Execution, Appeal Process, Costs
Civil Procedure Stay of Execution Appeal Process Costs

Case Brief

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Parties

Council of the Shire of Wellington

Claimant/appellant

Brincat

Opponent/respondent

Procedural Posture

Application for Stay of Execution / Interlocutory

Legal Issues

  1. 1 Whether to grant a stay of execution pending appeal

Ratio Decidendi

A stay of execution should be granted where the appeal is not hopeless and there is a real risk that the moneys paid may not be repaid if the appellant succeeds, particularly when there is no urgent need for the funds by the respondent.

Court Disposition

Stay of execution granted pending appeal; case to be listed for Registrar's callover; claimant to pay opponent's costs of the motion.

Orders

  • Execution of the judgment in favour of the opponent be stayed pending determination of the appeal.
  • Case to be placed in the Registrar's callover for 3 July 1991 to fix a hearing date for the appeal.