Coles Supermarkets Australia Pty Ltd v Fardous

Coles Supermarkets Australia Pty Ltd (the appellant) sought a stay of a judgment and order of the primary court pending an appeal. The respondent, Mr Fardous, had obtained judgment against Coles for a sum of money. Coles sought to stay the enforcement of this judgment, which would require payment of the judgment sum to Mr Fardous, pending the determination of its appeal against that judgment.

The central legal issue before the Court of Appeal was whether to grant a stay of the judgment and order. Specifically, the court had to consider whether the appellant had demonstrated sufficient grounds for a stay, particularly in light of the respondent's potential inability to recover the judgment sum if the appeal were successful and the stay were refused. The court also considered whether the prejudice to the respondent was a relevant factor in determining the application for a stay, and whether the terms of any potential stay should be varied.

Leeming JA dismissed the application for a stay. The court applied the principles governing applications for a stay of execution pending appeal, which generally require the applicant to demonstrate that there are substantial grounds for the appeal and that there is a real risk of prejudice if the stay is not granted. In this instance, the court found that the appellant had not established a sufficient risk of prejudice to warrant a stay. The court noted that the appellant had not demonstrated that it would be unable to recover the amount paid pending appeal, and that the potential prejudice to the respondent was a relevant consideration.

The Notice of Motion filed on 13 August 2014 was dismissed with costs.