Drew v Makita (Australia) Pty Ltd

In the matter of Drew v Makita (Australia) Pty Ltd, the defendant, Makita, sought to appeal a decision made in favour of the plaintiff, Drew, in his personal injury action. The trial court had ordered Makita to pay Drew $194,454.86 plus costs. The central issue in this case was whether the court should grant a stay of execution pending the appeal, considering that Drew was unemployed and had few unencumbered assets, while Makita argued that a stay would not prejudice Drew.

The court considered the principles governing the grant or refusal of a stay of execution. It noted that the primary consideration was whether the plaintiff would be prejudiced if the stay was granted. The court recognised that Drew's financial situation did not present a compelling reason to deny the stay, as he was not currently receiving income and had limited assets. Furthermore, Makita argued that a stay would not prejudice Drew, as the funds would not be accessible to Drew during the appeal period. The court also took into account the fact that Drew had not demonstrated any urgency in enforcing the judgment.

The court determined that the circumstances warranted the granting of a stay of execution pending the appeal. The court found that Drew would not be prejudiced by the stay, as he had few unencumbered assets, and Makita had not provided any evidence suggesting that Drew would be prejudiced by the stay. The court emphasised that the primary concern was to ensure that justice was served in a fair and equitable manner, and in this case, granting the stay did not result in any prejudice to Drew.

The court ordered that the application for a stay of execution pending the appeal be granted. The costs of the application were reserved to the Court of Appeal. This decision ensures that the appeal process can proceed without placing an undue financial burden on Drew, while also allowing Makita the opportunity to challenge the trial court's decision.