Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd

Penrith Whitewater Stadium Ltd (the claimants) sought a stay of judgment and orders made by Grove J in the Supreme Court of New South Wales on 12 April 2007, following his Honour's judgment of 29 March 2007, pending the determination of their appeal. Lesvos Pty Ltd was the respondent.

The primary legal issue before McColl JA was whether the claimants had established a sufficient risk that the judgment would not be repaid if the stay was not granted, thereby justifying the stay of execution. A secondary issue concerned the release of a bank guarantee provided by the claimants as security for the costs of the trial.

McColl JA applied the principles governing applications for a stay of execution pending appeal. Her Honour considered the prospects of success on appeal, the risk of the judgment not being repaid, and the balance of convenience. The court noted that a stay is an exceptional remedy and requires more than a mere assertion of an intention to appeal. The court also considered the adequacy of security for costs.

The application for a stay was granted, with the judgment and orders of Grove J stayed pending the determination of the appeal. The costs of the stay application were made costs in the appeal. The appeal was expedited on the claimants' undertaking to prosecute it with due diligence, and the claimants were ordered to file an amended notice of appeal.