Dai v Zhu

This matter concerned an application by the applicants for a stay of execution of orders made by Rothman J, pending the determination of their application for leave to appeal and any subsequent appeal. The respondents had commenced bankruptcy proceedings to enforce the judgment, and the applicants argued that this action risked rendering them unable to pursue their appeal. The applicants also contended that the amount in issue was significant and that the judgment under challenge included adverse findings concerning breaches of discovery obligations and the dissipation of assets.

The primary legal issue before the court was whether a stay of execution should be granted, and if so, on what terms. This involved considering the appropriate form of orders, particularly whether the applicants should be required to pay the full judgment amount into court, which they asserted would be impossible. The court also had to consider alternative conditions, such as requiring affidavits regarding assets and liabilities, and the implications of any delay. Furthermore, the court's power to make orders affecting Federal Court proceedings was a relevant consideration.

Basten JA granted the stay of execution of the orders pending the determination of the application for leave to appeal and the appeal itself, subject to specific conditions. These conditions included the applicants paying $500,000 into court within 28 days, provided the respondents filed an undertaking to consent to any application by the applicants for an extension of time to comply with any bankruptcy notice issued. The stay would lapse if the undertaking was not provided within 14 days, or if the respondents failed to comply with their undertaking after moneys had been paid into court. The applicants were also required to take all necessary steps to ensure the expeditious determination of the proceedings in the Court, and the application for leave to appeal and the appeal were listed for concurrent hearings.