Michael J Drapac v Ashley J Wain

Michael J Drapac applied for a stay on the execution of judgment entered against him in favour of Ashley J Wain pending the outcome of an appeal. The application was heard in the Supreme Court of New South Wales. The dispute centred around the interpretation and application of the Supreme Court (General Civil Procedure) Rules, specifically rules 64.25 and 66.16, which govern the granting of a stay of execution pending appeal.

The court had to determine whether a real risk existed that the appeal would be rendered nugatory and, if so, whether special or exceptional circumstances existed to justify a stay. The court examined the onus of proof under rules 66.16 and 64.25 and considered the meaning of ‘real risk’ within the context of these rules. The applicant argued that a real risk existed due to the complexity of the issues on appeal and the potential for significant prejudice if the stay was not granted. The respondent contended that the applicant had not demonstrated the required exceptional circumstances.

The court held that while a real risk of the appeal being rendered nugatory existed, the applicant had not demonstrated the special or exceptional circumstances necessary to warrant a stay. The court emphasised the importance of discretion in exercising its power to grant a stay and concluded that, in the circumstances of this case, the discretion should be exercised against granting a stay. Consequently, the application for a stay was refused.