Batterham v Makeig [2009] NSWCA 295

Batterham v Makeig [2009] NSWCA 295

A stay is granted on the basis that the appeal raises serious issues and there is a real risk of irrecoverable loss for the appellants if payment is made to the respondent before appeal determination; balance of convenience favours a conditional stay requiring monthly payments to the respondent.

Jurisdiction
Australia
Judgment Date
18 September 2009
Procedural Posture
Appeal / Interlocutory Order on Stay Pending Appeal
Outcome
Stay of the lower court judgment pending appeal, with monthly conditional payments, expedition ordered, liberty to apply for variation, security for costs decision deferred.
Legal Topics
['stay of Judgment' 'expedition of Appeal' 'security for Costs' 'fresh Evidence']
['civil Procedure'] ['stay of Judgment' 'expedition of Appeal' 'security for Costs' 'fresh Evidence']

Case Brief

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Procedural Posture

Appeal / Interlocutory Order on Stay Pending Appeal

Legal Issues

  1. 1 ['Whether to grant a stay of execution of a judgment pending appeal' 'Whether to expedite the appeal hearing' 'Whether to require payment as a condition of stay' 'Whether to grant liberty to vary the terms of stay']

Ratio Decidendi

A stay is granted on the basis that the appeal raises serious issues and there is a real risk of irrecoverable loss for the appellants if payment is made to the respondent before appeal determination; balance of convenience favours a conditional stay requiring monthly payments to the respondent.

Court Disposition

Stay of the lower court judgment pending appeal, with monthly conditional payments, expedition ordered, liberty to apply for variation, security for costs decision deferred.

Orders

  • ['Stay of the judgment and orders of Ward J made on 7 May 2009 until the determination of the appeal, conditional on appellants paying the respondent $10,000 per month (October payment by fifteenth day).' 'Liberty to the appellants to apply for variation of stay order on three days notice.' 'Expedition of the appeal...