WENKART v PITMAN [1997] NSWCA 336

WENKART v PITMAN [1997] NSWCA 336

The stay of the relevant orders is granted on the condition that the applicant, Dr Wenkart (and similarly Abignano, Genallco, and Abigroup), provides a bank guarantee to the Registrar for the full sum of the judgment within fourteen days. The argument of possible prejudice to the appellant (Dr Wenkart) due to Mr Pitman's impecuniosity weighed in favour of granting a conditional stay.

Parties
Appellant: Wenkart; Respondent: Pitman; Appellant: Abignano; Appellant: Genallco Pty Ltd; Appellant: Abigroup Ltd; Respondent: Sandtara Pty Ltd
Jurisdiction
Australia
Judgment Date
28 October 1997
Procedural Posture
Appeal / Interlocutory Applications for Stay Pending Appeal
Outcome
Stay of execution granted on condition of provision of bank guarantee; costs to be costs in the appeals.
Legal Topics
Guarantee and Indemnity, Stay of Execution, Security for Judgment, Oral Indemnity, Cross Claim, Mitigation of Damages, Appeal Procedure
Commercial Law Contract Law Litigation Procedure Guarantee and Indemnity Stay of Execution Security for Judgment Oral Indemnity Cross Claim +2 more

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Parties

Wenkart

Appellant

Pitman

Respondent

Abignano

Appellant

Genallco Pty Ltd

Appellant

Abigroup Ltd

Appellant

Sandtara Pty Ltd

Respondent

Procedural Posture

Appeal / Interlocutory Applications for Stay Pending Appeal

Legal Issues

  1. 1 Whether a stay of judgment should be granted pending appeal and on what conditions
  2. 2 Whether security should be required for any stay of execution
  3. 3 Strength of appeals (including on oral indemnity, amendment of pleadings, mitigation of damages, and interest)

Ratio Decidendi

The stay of the relevant orders is granted on the condition that the applicant, Dr Wenkart (and similarly Abignano, Genallco, and Abigroup), provides a bank guarantee to the Registrar for the full sum of the judgment within fourteen days. The argument of possible prejudice to the appellant (Dr Wenkart) due to Mr Pitman's impecuniosity weighed in favour of granting a conditional stay.

Court Disposition

Stay of execution granted on condition of provision of bank guarantee; costs to be costs in the appeals.

Orders

  • Stay of execution of orders 10, 11, and 12 as against Dr Wenkart, conditional upon provision of a bank guarantee for the judgment sum within fourteen days.
  • Similar conditional stays for Abignano, Genallco, and Abigroup upon provision of security by bank guarantee for the judgment sum within fourteen days.