Sterileair Pty Ltd v George Ralph Papallo [1998] FCA 665

Sterileair Pty Ltd v George Ralph Papallo [1998] FCA 665

Because the applicant had no assets and the respondents' judgment and further appeal costs would likely be irrecoverable, but winding up would be a relevant prejudice to the applicant and likely prevent the appeal from proceeding, a stay was appropriate only if the respondents were substantially protected by security for the judgment debt and their costs of the appeal, with the amount calculated as a reasonable estimate of indemnity costs for the stay application and appeal.

Jurisdiction
Australia
Judgment Date
20 May 1998
Procedural Posture
Motion for Stay Pending Appeal / Ex Tempore Reasons for Judgment on Applicant's Motion to Stay Orders Made on 5 May 1998 Pending Appeal
Outcome
Conditional stay granted.
Legal Topics
['stay Pending Appeal' 'security for Judgment Debt and Costs of Appeal' 'winding Up' 'statutory Demand' 'financial Assistance Under S 205 of the Corporations Law']
['civil Procedure' 'corporations Law'] ['stay Pending Appeal' 'security for Judgment Debt and Costs of Appeal' 'winding Up' 'statutory Demand' 'financial Assistance Under S 205 of the Corporations Law']

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Procedural Posture

Motion for Stay Pending Appeal / Ex Tempore Reasons for Judgment on Applicant's Motion to Stay Orders Made on 5 May 1998 Pending Appeal

Legal Issues

  1. 1 ['Whether orders 2 and 3 made on 5 May 1998 should be stayed until the final determination of appeal proceedings NG 278 of 1998.' "Whether any stay should be conditional upon the applicant providing security for the judgment debt and the respondents' costs of the appeal." 'Whether the amount of security should be calculated by reference to party and party costs or indemnity costs.']

Ratio Decidendi

Because the applicant had no assets and the respondents' judgment and further appeal costs would likely be irrecoverable, but winding up would be a relevant prejudice to the applicant and likely prevent the appeal from proceeding, a stay was appropriate only if the respondents were substantially protected by security for the judgment debt and their costs of the appeal, with the amount calculated as a reasonable estimate of indemnity costs for the stay application and appeal.

Court Disposition

Conditional stay granted.

Orders

  • ["Conditionally upon the applicant providing security in a form and in an amount (subject to order 2) to be determined, failing agreement between the parties, by the Court, for the judgment debt and for the respondents' costs of the appeal, orders 2 and 3 made on 5 May 1998 are stayed until the final determination...