Foakes v Parker [1999] NSWCA 20

Foakes v Parker [1999] NSWCA 20

The discretion exercised by the trial judge in granting a partial stay of execution should generally be maintained, but given the reasonable argument on appeal and the risk that funds may not be recoverable, a proviso should be added that the part payment is to be applied only to legal costs, with an undertaking by solicitors for repayment if the appeal succeeds.

Parties
Appellant: Geoffrey Foakes; Respondent: Maria Teresa Gabriella Parker
Jurisdiction
Australia
Judgment Date
15 February 1999
Procedural Posture
Civil Appeal / Application for Stay of Execution Pending Appeal
Outcome
Motion for stay granted as to part of judgment and refused as to balance, subject to conditions.
Legal Topics
Stay of Execution, Payment of Judgment, Trial Conduct, Evidentiary Fairness
Torts Medical Negligence Civil Procedure Stay of Execution Payment of Judgment Trial Conduct Evidentiary Fairness

Case Brief

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Parties

Geoffrey Foakes

Appellant

Maria Teresa Gabriella Parker

Respondent

Procedural Posture

Civil Appeal / Application for Stay of Execution Pending Appeal

Legal Issues

  1. 1 Whether to grant a stay of execution of the District Court judgment pending appeal
  2. 2 Whether the trial judge's order for part payment should be interfered with
  3. 3 Whether the conduct of the trial regarding expert evidence was fair

Ratio Decidendi

The discretion exercised by the trial judge in granting a partial stay of execution should generally be maintained, but given the reasonable argument on appeal and the risk that funds may not be recoverable, a proviso should be added that the part payment is to be applied only to legal costs, with an undertaking by solicitors for repayment if the appeal succeeds.

Court Disposition

Motion for stay granted as to part of judgment and refused as to balance, subject to conditions.

Orders

  • Stay of execution of judgment granted as to part; payment to respondent to be used only for legal costs and expenses, with solicitors to refund if appeal succeeds.
  • Costs of motion to be costs in the appeal.