Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 289

Glad Retail Cleaning Pty Ltd v Alvarenga [2013] NSWCA 289

A stay was necessary in the interests of justice because Glad Retail's appeal grounds concerning obvious risk and reasonable precautions had some prospects of success, the first respondent's financial circumstances created a real risk that monies paid under the judgment would be dissipated and restitution would not be available if the appeal succeeded, and Mirvac's position required only a temporary stay contingent on it promptly seeking an extension of time to appeal.

Jurisdiction
Australia
Judgment Date
26 August 2013
Procedural Posture
Interlocutory Applications for Stay of Judgment Pending Appeal / Court of Appeal Notices of Motion Under UCPR 51.44
Outcome
Stays granted; Mirvac required to seek an extension of time to appeal; costs of both motions to be costs in the appeal.
Legal Topics
['stay of Judgment Pending Appeal' 'joint Tortfeasors' 'risk of Restitution' 'extension of Time to Appeal' 'personal Injury Damages']
['civil Procedure' 'appellate Procedure' 'torts'] ['stay of Judgment Pending Appeal' 'joint Tortfeasors' 'risk of Restitution' 'extension of Time to Appeal' 'personal Injury Damages']

Case Brief

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Procedural Posture

Interlocutory Applications for Stay of Judgment Pending Appeal / Court of Appeal Notices of Motion Under UCPR 51.44

Legal Issues

  1. 1 ["Whether Judge Elkaim's judgment of 28 March 2013 should be stayed pending determination of Glad Retail's appeal." 'Whether Mirvac, which had not filed a notice of appeal, could obtain a stay and on what terms.' 'Whether payment of the judgment sum to the first respondent would create a risk that restitution could not be obtained if the appeal succeeded.' 'Whether the appeal grounds had sufficient merit to support a stay.']

Ratio Decidendi

A stay was necessary in the interests of justice because Glad Retail's appeal grounds concerning obvious risk and reasonable precautions had some prospects of success, the first respondent's financial circumstances created a real risk that monies paid under the judgment would be dissipated and restitution would not be available if the appeal succeeded, and Mirvac's position required only a temporary stay contingent on it promptly seeking an extension of time to appeal.

Court Disposition

Stays granted; Mirvac required to seek an extension of time to appeal; costs of both motions to be costs in the appeal.

Orders

  • ["On Glad Retail's notice of motion of 12 August 2013 order pursuant to UCPR 51.44 that Judge Elkaim's judgment of 28 March 2013 be stayed until the determination of the applicant's appeal." "In relation to Mirvac's notice of motion of 22 August 2013, order pursuant to UCPR 51.44 that Judge Elkaim's judgment of 28...