State of New South Wales v Thomlinson

The Court of Appeal of New South Wales considered an application for a stay of payment of the outstanding balance of a judgment debt. The applicant, the State of New South Wales, sought this stay pending the determination of its appeal against a damages award made in favour of the respondent, Mr. Thomlinson, in the District Court.

The central legal issue before the Court was whether to grant a stay of the outstanding judgment debt, considering the balance of convenience. This involved assessing the potential prejudice to both parties if the stay was granted or refused, particularly in light of the risk of non-repayment of the judgment sum should the appeal be successful.

Basten JA, in determining the application, weighed the competing interests. His Honour acknowledged the respondent's entitlement to the fruits of the judgment but also recognised the applicant's right to pursue its appeal. The Court considered the financial position of the applicant and the potential, albeit not definitively established, risk of the respondent being unable to repay the judgment sum if the appeal succeeded. Ultimately, the Court concluded that the balance of convenience favoured granting the stay.

Accordingly, the Court ordered a stay of the payment of the outstanding balance of the judgment debt. The costs of the application were reserved and to be costs in the appeal.