Dierickx v HP Mercantile Pty Ltd

In *Dierickx v HP Mercantile Pty Ltd*, the applicants, Ludo Victor Dierickx and Wendy Anne Dierickx, sought a stay of a judgment debt pending an application for special leave to appeal to the High Court of Australia. The respondent, HP Mercantile Pty Ltd, was the judgment creditor. The matter came before Basten JA of the Court of Appeal of the Supreme Court of New South Wales.

The primary legal issue before the Court was whether exceptional circumstances existed to warrant a stay of the judgment. This involved considering the applicants' financial capacity to repay the judgment sum if their appeal to the High Court were successful, the merit of their proposed application for special leave, and whether the matter possessed an element of public importance. The Court also considered the applicants' offer to pay the judgment sum into a controlled moneys account.

Basten JA reasoned that a stay of execution pending an application for special leave to appeal to the High Court is an extraordinary remedy that requires the demonstration of exceptional circumstances. His Honour noted that while the applicants had offered to pay the judgment sum into a jointly managed account, this did not, in itself, constitute exceptional circumstances. The Court considered the merits of the proposed appeal and the public importance of the issues raised, but ultimately found that the threshold for granting a stay had not been met.

Consequently, the Court ordered that the judgment sum of $273,721.52 be paid by the applicants into a controlled moneys account administered jointly by Piper Alderman and Versace McKenzie Lawyers within 60 days. These funds were to be held in the account until further order of a judge of the Court of Appeal or the High Court. The costs of the motion were awarded to the respondent, to follow the order made in the special leave application, with liberty to apply.