FOLEY (T/As AND COMPANY) v CLARKE [1997] NSWCA 110

FOLEY (T/As AND COMPANY) v CLARKE [1997] NSWCA 110

A stay was granted because the appeal raised the issue of liability, was not frivolous, and there was concern about difficulty in recovering the judgment if the appeal succeeds.

Parties
Appellant: Foley (T/as & Company); Respondent: Clarke
Jurisdiction
Australia
Judgment Date
15 December 1997
Procedural Posture
Appeal / Interlocutory Application for Stay
Outcome
Stay granted
Legal Topics
Stay of Judgment, Expedition of Appeal
Civil Procedure Stay of Judgment Expedition of Appeal

Case Brief

Summary, issues, holding and outcome

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Parties

Foley (T/as & Company)

Appellant

Clarke

Respondent

Procedural Posture

Appeal / Interlocutory Application for Stay

Legal Issues

  1. 1 Whether a stay of judgment should be granted pending appeal
  2. 2 Whether the appeal is frivolous or has merit
  3. 3 Potential difficulty in recovery of judgment if appeal succeeds

Ratio Decidendi

A stay was granted because the appeal raised the issue of liability, was not frivolous, and there was concern about difficulty in recovering the judgment if the appeal succeeds.

Court Disposition

Stay granted

Orders

  • Judgment of McLachlan AJ stayed pending the determination of the appeal or further order, subject to diligent prosecution of the appeal by the appellant.
  • Costs in the motion are to be costs in the appeal.