THE NOMINAL DEFENDANT v SKRPKA [1988] NSWCA 106

THE NOMINAL DEFENDANT v SKRPKA [1988] NSWCA 106

A stay should be granted to protect the utility of the appeal where, if no stay is granted, the applicant may irretrievably lose the benefits of a successful appeal, and the trial judge's assessment of merits or bona fides is not determinative for the appellate court's discretion.

Parties
Applicant: The Nominal Defendant; Respondent: Skrpka
Jurisdiction
Australia
Judgment Date
01 February 1988
Procedural Posture
Motion for Stay of Execution / Appeal From District Court, Application for Stay Pending Appeal
Outcome
Stay of execution granted pending appeal
Legal Topics
Stay of Execution, Appeal, Utility of Appeal, Trial Judge's Findings on Credit
Practice and Procedure Stay of Execution Appeal Utility of Appeal Trial Judge's Findings on Credit

Case Brief

Summary, issues, holding and outcome

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Parties

The Nominal Defendant

Applicant

Skrpka

Respondent

Procedural Posture

Motion for Stay of Execution / Appeal From District Court, Application for Stay Pending Appeal

Legal Issues

  1. 1 Whether a stay of execution of judgment pending appeal should be granted
  2. 2 Whether the trial judge's assessment of credit and merits precludes a stay by an appellate court

Ratio Decidendi

A stay should be granted to protect the utility of the appeal where, if no stay is granted, the applicant may irretrievably lose the benefits of a successful appeal, and the trial judge's assessment of merits or bona fides is not determinative for the appellate court's discretion.

Court Disposition

Stay of execution granted pending appeal

Orders

  • Execution upon the judgment entered by his Honour Judge Lloyd-Jones DCJ on 11 November 1987 be stayed pending disposal of the appeal
  • Costs of the motion be costs in the appeal