PRACTICE AND PROCEDURE – application for stay of judgment pending appeal – principles for grant of stay – whether serious question to be tried – where no legal error alleged in judgment below – where proceedings below involved significant credit issues – where applicant unable to identify anything tending to show trial judge’s findings contrary to incontrovertibly established facts or uncontested testimony or that trial judge failed to use or palpably misused his advantage or that finding glaringly improbable or contrary to compelling inferences – balance of convenience – whether respondents would be unable to repay the judgment if appeal were to proceed and succeed – whether denial of stay would stifle appeal – where respondents have served applicant with bankruptcy notice – where applicant has costs order against him in favour of the respondents arising from cross-claim in proceedings below – where respondents have applied for assessment of costs of cross-claim – where reasonable to infer that applicant will seek review of cost assessment – where no material before Court to make out basis for concluding that such application would be concluded before hearing of appeal
1 HIS HONOUR: This is an application for a stay pending appeal concerning a judgment of White J given on 29 February 2008: Dawson v LNG Holdings [2008] NSWSC 137. The proceedings in the court below were heard over eight hearing days, from 16 July to 26 July 2007. In them Mr and Mrs Dawson brought claims against three defendants, LNG Holdings Pty Ltd (“LNG”), Mr Vaughan and Mrs Nash.
The Proceedings Below
2 The claim related to representations concerning investment in a development project at Balmain. The plaintiffs alleged that there had been representations that had induced them to invest in the development project and that they lost the money they invested.
3…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Vaughan v Dawson [2008] NSWCA 169
Case
[2008] NSWCA 169
Decision Date
CaseChat Overview and Summary
In *Vaughan v Dawson*, the applicant, Vaughan, sought a stay of a judgment pending an appeal, while the respondents were Dawson. The dispute concerned an application for a stay of judgment, with the court being the Court of Appeal of New South Wales.
The primary legal issue before the court was whether to grant a stay of the judgment. This required the court to consider the principles governing the grant of a stay, specifically whether there was a serious question to be tried, and to assess the balance of convenience between the parties.
Campbell JA found that there was no serious question to be tried, as the applicant was unable to demonstrate any legal error in the judgment below. The proceedings below had involved significant credit issues, and the applicant had failed to identify any evidence suggesting the trial judge's findings were contrary to established facts, uncontested testimony, or that the judge had misused their advantage. Furthermore, the balance of convenience favoured the respondents. The applicant had been served with a bankruptcy notice, and there was a costs order against him in favour of the respondents arising from a cross-claim. Given the respondents' application for assessment of these costs and the likelihood of the applicant seeking a review of that assessment, it was reasonable to infer that such proceedings would not be concluded before the hearing of the appeal. Consequently, the court dismissed the application.