Sutherland Shire Council v Major

In *Sutherland Shire Council v Major*, Sackville AJA in the Supreme Court of New South Wales considered an application by the appellant, Sutherland Shire Council, to vary a previous order concerning a stay of judgment. The dispute arose from a principal judgment delivered on 9 July 2014, followed by an order on 29 October 2014 by Cogswell SC DCJ that granted a stay of that judgment on the condition that the appellant pay $105,000 to the respondent within 28 days. The appellant sought to have this condition altered.

The primary legal issue before Sackville AJA was whether to grant a conditional stay of the principal judgment pending the determination of the appellant's appeal. The appeal was limited to the quantum of damages awarded, not liability. The court was required to determine the appropriate amount, if any, that the appellant should be ordered to pay to the respondent as a condition for the stay, considering the risk of the respondent being unable to repay the funds should the appeal be successful.

Sackville AJA reasoned that the application should be dealt with afresh, as permitted by section 67 of the CP Act and rule 51.44 of the Uniform Civil Procedure Rules 2005. The court considered evidence not presented to the primary judge, which indicated a risk that the respondent might not be able to repay the full judgment sum if the appeal succeeded. However, the appellant's best-case scenario on appeal was a significant reduction in damages. Balancing the potential for the respondent to be unable to repay funds against the appellant's likely success in reducing the damages, and noting the respondent's limited verifiable assets, the court concluded that there was a minimal risk of the respondent being unable to repay an amount up to approximately $20,000. Consequently, the court ordered that the previous stay order be set aside and a new stay be granted on the condition that the appellant pay $70,000 to the respondent within 28 days, with costs of the application to be costs in the cause.