Saint-Gobain Abrasives Pty Ltd v McPherson [2008] NSWCA 262

Saint-Gobain Abrasives Pty Ltd v McPherson [2008] NSWCA 262

A stay was warranted because the respondent's uncontested impecuniosity created a real prospect that the applicant could not recover judgment monies if the appeal succeeded, and the appeal could not be characterised as hopeless. Although the applicant delayed in bringing the stay application, the interests of justice favoured a stay pending the appeal, with the applicant undertaking to prosecute the appeal with diligence. Costs were ordered to be costs in the cause because the applicant delayed in bringing the stay application and the transcript difficulties did not affect making that application.

Jurisdiction
Australia
Judgment Date
13 October 2008
Procedural Posture
Notice of Motion for Stay of District Court Judgment Pending Appeal / Court of Appeal Procedural Application
Outcome
Stay granted; leave to amend notice of appeal granted; costs of the motion to be costs in the cause.
Legal Topics
['stay of Judgment Pending Appeal' 'impecuniosity of Respondent' 'prospects of Success on Appeal' 'leave to Amend Notice of Appeal' 'costs of Motion']
['civil Procedure' 'appellate Procedure'] ['stay of Judgment Pending Appeal' 'impecuniosity of Respondent' 'prospects of Success on Appeal' 'leave to Amend Notice of Appeal' 'costs of Motion']

Case Brief

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Procedural Posture

Notice of Motion for Stay of District Court Judgment Pending Appeal / Court of Appeal Procedural Application

Legal Issues

  1. 1 ['Whether the District Court judgment should be stayed pending disposition of the appeal or further order.' 'Whether delay in bringing the stay application should prevent a stay.' 'Whether the appeal had sufficient prospects of success to justify a stay.' "Whether the respondent's impecuniosity created a risk that judgment monies could not be recovered if the appeal succeeded." 'Whether the applicant should have leave to amend its notice of appeal.']

Ratio Decidendi

A stay was warranted because the respondent's uncontested impecuniosity created a real prospect that the applicant could not recover judgment monies if the appeal succeeded, and the appeal could not be characterised as hopeless. Although the applicant delayed in bringing the stay application, the interests of justice favoured a stay pending the appeal, with the applicant undertaking to prosecute the appeal with diligence. Costs were ordered to be costs in the cause because the applicant delayed in bringing the stay application and the transcript difficulties did not affect making that application.

Court Disposition

Stay granted; leave to amend notice of appeal granted; costs of the motion to be costs in the cause.

Orders

  • ['Stay the judgment of the District Court of New South Wales dated 10 June 2008 in proceedings 5076/06 until disposition of the appeal or until further order.' 'Give the appellant leave to amend the notice of appeal, such amended notice of appeal to be filed and served within seven days.' 'Costs of the motion to be...