The Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust (ACN 083 629 225) v Lenard's Pty Ltd (ACN 010 711 145) (No 4) [2004] FCA 1662

The Silver Fox Company Pty Ltd as Trustee for the Baker Family Trust (ACN 083 629 225) v Lenard's Pty Ltd (ACN 010 711 145) (No 4) [2004] FCA 1662

It would be inappropriate to grant a stay of the money judgment or enforcement of costs pending appeal where the successful applicants are of limited means due, in part, to the respondents' conduct and require access to judgment moneys to defend the appeal; provided the applicants undertake not to enforce costs and to use only so much of the judgment sum as is necessary to defend the appeal, the stay can be refused to prevent compromising the fair prosecution of their case, even where repayment if the appeal succeeds may be difficult.

Jurisdiction
Australia
Judgment Date
13 December 2004
Procedural Posture
Application for Stay Pending Appeal / Post Judgment; Interlocutory Application for Stay of Orders
Outcome
Stay of orders refused subject to applicant undertakings; notices of motion dismissed.
Legal Topics
['stay of Proceedings' 'undertakings on Enforcement of Judgment' 'franchising' 'misleading or Deceptive Conduct' 'agency']
['practice and Procedure' 'trade Practices'] ['stay of Proceedings' 'undertakings on Enforcement of Judgment' 'franchising' 'misleading or Deceptive Conduct' 'agency']

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Procedural Posture

Application for Stay Pending Appeal / Post Judgment; Interlocutory Application for Stay of Orders

Legal Issues

  1. 1 ['Should a stay of orders (including costs and payment of money) be granted pending appeal where the successful applicants lack means to defend the appeal and the respondents contend the appeals are arguable and recovery if successful would be at risk?' 'What undertakings or terms (if any) are appropriate to balance fairness between parties in granting or refusing a stay in these circumstances?']

Ratio Decidendi

It would be inappropriate to grant a stay of the money judgment or enforcement of costs pending appeal where the successful applicants are of limited means due, in part, to the respondents' conduct and require access to judgment moneys to defend the appeal; provided the applicants undertake not to enforce costs and to use only so much of the judgment sum as is necessary to defend the appeal, the stay can be refused to prevent compromising the fair prosecution of their case, even where repayment if the appeal succeeds may be difficult.

Court Disposition

Stay of orders refused subject to applicant undertakings; notices of motion dismissed.

Orders

  • ["On the applicant's undertaking not to seek to enforce the costs order and to hold judgment moneys pending the appeal using only such part as reasonably necessary to defend the appeal, the first respondent's notice of motion dated 2 December 2004 and the third and fourth respondents' notice of motion dated 1...