Penrith Whitewater Stadium Ltd & Anor v Lesvos Pty Ltd & Anor [2007] NSWCA 103

Penrith Whitewater Stadium Ltd & Anor v Lesvos Pty Ltd & Anor [2007] NSWCA 103

The evidence from the security for costs proceedings established a real risk that the judgment would not be repaid if paid over and the appeal later succeeded, including evidence that Lesvos was insolvent and Koffee had ceased to trade. The interests of justice therefore required a stay of Grove J's judgment and orders pending determination of the appeal. The bank guarantee should not be released because, if the appeal succeeded, the first instance costs order might be reversed and the risk identified when security for costs was ordered remained a live concern as to the first instance costs.

Jurisdiction
Australia
Judgment Date
23 April 2007
Procedural Posture
Application for Stay of Judgment and Orders Pending Appeal / Court of Appeal Application Pending Determination of Appeal
Outcome
Stay granted pending determination of the appeal; expedition granted; application to release the bank guarantee refused.
Legal Topics
['stay Pending Appeal' 'security for Costs' 'bank Guarantee' 'risk of Non Repayment' 'notice of Appeal']
['civil Procedure' 'appellate Procedure'] ['stay Pending Appeal' 'security for Costs' 'bank Guarantee' 'risk of Non Repayment' 'notice of Appeal']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application for Stay of Judgment and Orders Pending Appeal / Court of Appeal Application Pending Determination of Appeal

Legal Issues

  1. 1 ['Whether the judgment and orders made by Grove J should be stayed pending the determination of the appeal.' 'Whether the evidence established a risk that the judgment sum would not be repaid if the stay was refused and the appeal succeeded.' 'Whether the bank guarantee provided by the opponents as security for costs of the trial should be released.' 'Whether the claimants should file a further amended notice of appeal complying with the requirements for notices of appeal.']

Ratio Decidendi

The evidence from the security for costs proceedings established a real risk that the judgment would not be repaid if paid over and the appeal later succeeded, including evidence that Lesvos was insolvent and Koffee had ceased to trade. The interests of justice therefore required a stay of Grove J's judgment and orders pending determination of the appeal. The bank guarantee should not be released because, if the appeal succeeded, the first instance costs order might be reversed and the risk identified when security for costs was ordered remained a live concern as to the first instance costs.

Court Disposition

Stay granted pending determination of the appeal; expedition granted; application to release the bank guarantee refused.

Orders

  • ["Pursuant to the Supreme Court Rules Pt 51 r (2), the judgment and orders of the Honourable Grove J of 12 April 2007, as read with his Honour's judgment of 29 March 2007, be stayed pending the determination by this Court of the claimants' appeal against the aforesaid orders." 'Costs of the application for a stay be...