Barakat v Estate of the late Stavre Bazdarov

In the matter of *Barakat v Estate of the late Stavre Bazdarov*, the appellants sought a stay of a judgment entered against them in the District Court on 24 June 2011. The appeal concerned the likelihood of recovery should the judgment be overturned and the prejudice to the respondent if a stay were granted.

The primary legal issue before the Court was whether the grounds of appeal were arguable, and consequently, whether a stay of the District Court's judgment should be granted pending the determination of the appeal. This involved assessing the balance of convenience, particularly the potential prejudice to the respondent against the appellants' prospects of recovering any monies paid pursuant to the judgment if the appeal were successful.

Basten JA considered the principles governing applications for a stay of execution pending appeal. His Honour noted that a stay would ordinarily be granted if there were substantial grounds for appeal and if the respondent would not be unduly prejudiced. In this instance, the Court was satisfied that the appellants had provided an undertaking to prosecute the appeal expeditiously. Based on this undertaking and the assessment of the grounds of appeal, the Court ordered a stay of the District Court's judgment. The costs associated with the motion for the stay were made costs in the appeal.