Coles Supermarkets Australia Pty Ltd v Clarke

[2012] NSWCA 428

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Coles Supermarkets Australia Pty Ltd v Clarke [2012] NSWCA 428

Hearing dates:

3 December 2012

Decision date:

03 December 2012

Before:

Ward JA

Decision:

Dismiss Notice of Motion for stay of District Court judgment, with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PRACTICE AND PROCEDURE - application for stay of judgment pending appeal - no evidence of respondent's means

Cases Cited:

Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685
Chen v Lym International Pty Ltd [2009] NSWCA 121
McBridge v Sandland (No 2) (1918) 25 CLR 369
Trad v Harbour Radio Pty Ltd [2010] NSWCA 41

Category:

Interlocutory applications

Parties:

Coles Supermarkets Australia Pty Ltd (Appellant)
Philip Clarke (Respondent)

Representation:

Counsel:
R Weaver (Appellant)
C A Evatt with R K Rasmussen (Respondent)
Solicitors:
McCulloch and Buggy (Appellant)
Beazley Singleton (Respondent)

File Number(s):

CA 12/266856

 Decision under appeal 

Citation:

[2012] NSWDC 107

Date of Decision:

2012-07-31 00:00:00

Before:

Levy DCJ

File Number(s):

10/296700

Judgment (ex tempore)

1. HER HONOUR: This is an application pursuant to a Notice of Motion filed on 25 October 2012 by Coles, seeking a stay of a judgment of Levy DCJ (which judgment is the subject of an application in this Court for leave to appeal).

1. It is contended by Coles, which was unsuccessful in defending proceedings in defamation brought by Mr Clarke in the District Court, that there are strong grounds of appeal. (For completeness I note that I was taken to a document marked Exhibit B in this motion which was a handwritten statement by the appellant. I was invited to infer, from the "florid nature of the document", that there was sufficient likelihood of success of the appeal which would support the appellant's stay application.)

1. The intended grounds of appeal as set out in the notice of appeal cover four areas: whether the findings of his Honour were against the weight of the evidence; whether his Honour should have permitted cross-examination in relation to a particular document; whether his Honour should have relied on a particular document in relation to the claim; and as to what is contended to be the excessive amount of the award.

1. While the absence of reasonably arguable grounds of appeal is likely to be a determinative consideration against a stay application (Chen v Lym International Pty Ltd [2009] NSWCA 121; Trad v Harbour Radio Pty Ltd [2010] NSWCA 41; Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685), the existence of reasonably arguable grounds of appeal is not necessarily sufficient to justify the grant of a stay (McBridge v Sandland (No 2) (1918) 25 CLR 369).

1. In the ordinary course a judgment creditor is entitled to the benefit of the judgment and the judgment is presumed to be correct until an appeal succeeds from the judgment.

1. There was no evidence as to the respondent's means (though I was taken to an extract from the transcript of the proceedings below to suggest that these might be limited). It was submitted that I could form the view that there is a risk that if the stay were not granted (and the application for leave to appeal and the appeal itself were to be successful) then Coles may not be able to recover amounts paid out in accordance with the judgment. However, I am not satisfied that the material before me sufficiently establishes that refusal to grant the stay would render the appeal futile and I note that refusal to grant the stay is unlikely to cause Coles to incur a significant financial burden in paying out the judgment debt.

1. I am not satisfied that it is appropriate in the circumstances to grant the stay that has been sought. I dismiss the notice of motion with costs.

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Decision last updated: 13 December 2012