GALLUZZO v SINCLAIR [1995] NSWCA 162

GALLUZZO v SINCLAIR [1995] NSWCA 162

A stay of execution should be granted if it is not used merely to delay or prejudice the successful party, and where there is a genuine intention to appeal, upon appropriate terms to safeguard the respondent's interest, specifically the filing of an appeal and provision of substantial security within a set timeframe.

Parties
Claimant: Salvatore Galluzzo; Claimant: Vincenza Galluzzo; Opponent: Amanda Sinclair
Jurisdiction
Australia
Judgment Date
06 March 1995
Procedural Posture
Application for Stay of Execution Pending Appeal / Application for Stay
Outcome
Stay of execution granted on conditions
Legal Topics
Stay of Execution, Appeal Process, Security for Costs
Practice and Procedure Appeals Stay of Execution Appeal Process Security for Costs

Case Brief

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Parties

Salvatore Galluzzo

Claimant

Vincenza Galluzzo

Claimant

Amanda Sinclair

Opponent

Procedural Posture

Application for Stay of Execution Pending Appeal / Application for Stay

Legal Issues

  1. 1 Whether a stay of execution of judgment should be granted pending appeal.
  2. 2 Whether the applicants' intention to appeal is genuine or only to obtain time to pay judgment moneys.
  3. 3 Whether the appeal is hopeless.

Ratio Decidendi

A stay of execution should be granted if it is not used merely to delay or prejudice the successful party, and where there is a genuine intention to appeal, upon appropriate terms to safeguard the respondent's interest, specifically the filing of an appeal and provision of substantial security within a set timeframe.

Court Disposition

Stay of execution granted on conditions

Orders

  • Stay execution of the orders and judgment of Spender AJ dated 9 November 1994 upon the terms that: (a) by 18 April 1995, Salvatore and Vincenza Galluzzo file their appeal; (b) by 18 April 1995, they deposit with the Registrar $100,000 in cash or by bank security;
  • Costs of this motion be costs in the appeal;