AUSTRALIAN GRANODIORITE LTD v DEVEX LTD [1991] NSWCA 6

AUSTRALIAN GRANODIORITE LTD v DEVEX LTD [1991] NSWCA 6

A stay of execution should be granted to protect the right of appeal, but, in the special circumstances of the appellant's precarious financial position, it should be conditional on provision of security for costs, which is to be set on a party and party basis rather than a solicitor and client basis.

Parties
Appellant: Australian Granodiorite Ltd; Respondent: Devex Ltd
Jurisdiction
Australia
Judgment Date
18 July 1991
Procedural Posture
Civil Appeal / Interlocutory Application in the Court of Appeal for Stay of Execution and Security for Costs
Outcome
Stay of execution granted on terms.
Legal Topics
Stay of Execution, Security for Costs, Appeal Procedures
Civil Procedure Stay of Execution Security for Costs Appeal Procedures

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Parties

Australian Granodiorite Ltd

Appellant

Devex Ltd

Respondent

Procedural Posture

Civil Appeal / Interlocutory Application in the Court of Appeal for Stay of Execution and Security for Costs

Legal Issues

  1. 1 Whether a stay of execution of the orders and judgment at first instance should be granted pending appeal
  2. 2 Whether special circumstances exist justifying an order for security for costs
  3. 3 The appropriate basis and quantum for security for costs

Ratio Decidendi

A stay of execution should be granted to protect the right of appeal, but, in the special circumstances of the appellant's precarious financial position, it should be conditional on provision of security for costs, which is to be set on a party and party basis rather than a solicitor and client basis.

Court Disposition

Stay of execution granted on terms.

Orders

  • Stay the execution of the orders and judgment of Brownie J of 28 May 1991 pending the appeal or further order.
  • Order expedited hearing of the appeal, category B, aiming for hearing within six weeks.