Commonwealth Bank of Australia v Barker [2012] FCA 1076

Commonwealth Bank of Australia v Barker [2012] FCA 1076

A partial stay of the enforcement of the costs order is warranted given doubts about the respondent’s ability to repay a substantial sum if the appeal succeeds, but not in respect of the judgment sum and interest, in light of the balance of convenience and the absence of strong evidence to displace the respondent's...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
03 October 2012
Procedural Posture
Application for Stay of Execution / Post Trial, Pending Determination of Appeal
Outcome
Partial stay granted
Legal Topics
['stay of Execution' 'balance of Convenience' 'appeal Procedures']
['practice and Procedure'] ['stay of Execution' 'balance of Convenience' 'appeal Procedures']

Source-derived case record

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Procedural Posture

Application for Stay of Execution / Post Trial, Pending Determination of Appeal

Legal Issues

  1. 1 ['Whether a stay of execution of judgment pending appeal should be granted' 'Appropriateness of exercising discretion to stay judgment enforcement, particularly as to costs']

Ratio Decidendi

A partial stay of the enforcement of the costs order is warranted given doubts about the respondent’s ability to repay a substantial sum if the appeal succeeds, but not in respect of the judgment sum and interest, in light of the balance of convenience and the absence of strong evidence to displace the respondent's right to enforce his judgment.

Court Disposition

Partial stay granted

Orders

  • ['Enforcement of any amount agreed or taxed in relation to costs pursuant to the third order made by the Court on 3 September 2012 is stayed pending the hearing and determination of the Bank’s appeal.' "Otherwise, the Commonwealth Bank of Australia's interlocutory application dated 17 September 2012 is dismissed."]