BURNS PHILP TRUSTEE COMPANY LIMITED v CLARKE [1996] NSWCA 82

BURNS PHILP TRUSTEE COMPANY LIMITED v CLARKE [1996] NSWCA 82

A stay of execution was appropriate due to genuine issues on appeal regarding liability, no evidence of hardship to the plaintiff if payment was withheld, and part payment of $35,000 was made/offered pending appeal.

Parties
Defendant: Burns Philp Trustee Company Limited; Plaintiff: Mr Clarke
Jurisdiction
Australia
Judgment Date
29 April 1996
Procedural Posture
Application for Stay of Execution Pending Appeal / Interlocutory Application in the Court of Appeal
Outcome
Stay of execution granted pending appeal, conditional on payment
Legal Topics
Stay of Execution, Appeal, Contributory Negligence
Civil Procedure Stay of Execution Appeal Contributory Negligence

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Parties

Burns Philp Trustee Company Limited

Defendant

Mr Clarke

Plaintiff

Procedural Posture

Application for Stay of Execution Pending Appeal / Interlocutory Application in the Court of Appeal

Legal Issues

  1. 1 Whether a stay of execution of judgment should be granted pending appeal and upon what conditions

Ratio Decidendi

A stay of execution was appropriate due to genuine issues on appeal regarding liability, no evidence of hardship to the plaintiff if payment was withheld, and part payment of $35,000 was made/offered pending appeal.

Court Disposition

Stay of execution granted pending appeal, conditional on payment

Orders

  • Execution of judgment stayed pending hearing of the appeal or further order
  • Condition that $35,000 be paid to the plaintiff towards satisfaction of the judgment within seven days; any amount already paid counts towards this