Stay of execution
[9-0000] Introduction
As to “Stay of pending proceedings” see [2-2600]–[2-2640].
The Supreme Court has inherent power to stay execution of a judgment or order “in any situation where the requirement of justice demands it”: Tringali v Stewardson Stubbs & Collett Pty Ltd [1966] 1 NSWR 354 at 360.
However, all CPA courts have wide powers under the CPA and UCPR to stay execution where appropriate. See, Secretary of the Treasury v Public Service Association & Professional Officers’ Association Amalgamation Union of New South Wales [2014] NSWCA 14.
Civil Procedure Act 2005 s 67 confers a general power on the court, subject to the UCPR, to stay proceedings either permanently or until a specified day.
The court may, by order, give directions with respect to the enforcement of a judgment or order: CPA s 135(1). It may make an order prohibiting the Sheriff from taking any further action on a writ or prohibiting any other person from taking any further action, either permanently or until a specified day, to enforce a judgment or order of the court: CPA s 135(2).
[9-0010] Pending appeal
An application (summons) for leave to appeal or an appeal to the Court of Appeal does not operate as a stay of proceedings under the decision below, or invalidate any intermediate act or proceedings: UCPR r 51.44(2). Subject to the filing of appropriate process, the Court of Appeal may order that the decision below or the proceedings under the decision be stayed: UCPR r 51.44(1).
Generally, an application for a stay pending appeal is made, in the first instance at least, to the trial judge: see Ritchie’s at 51.44.10.
An appeal from an Associate Judge to the Supreme Court, other than to the Court of Appeal, does not operate as a stay unless the Supreme Court or the associate Judge, subject to any direction of the Supreme Court, so directs: UCPR r 49.10.
Other than as provided by particular statutes, for example, Companion Animals Act 1998 s 24, an appeal from a tribunal to the Supreme Court does not operate as a stay with similar exceptions: UCPR r 50.7.
[9-0020] Principles governing stays
The former requirement that the applicant was only able to deny the judgment creditor the “fruits of victory” when “special” or “exceptional” circumstances warranted the imposition of a stay pending appeal no longer applies in New South Wales. It is sufficient that the applicant for the stay demonstrate a reason or an appropriate case to warrant favourable exercise of the discretion: Alexander v Cambridge Credit Corp Ltd (1985) 2 NSWLR 685 at 694.
The court judgment in that case at 694–695 enumerates a number of other relevant principles:
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The onus is upon the applicant to demonstrate a proper basis for a stay which will be fair to all parties.
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The mere filing of an appeal does not demonstrate an appropriate case or discharge the onus.
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The court has a discretion involving the weighing of considerations such as balance of convenience and the competing rights of the parties.
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Where there is a risk that if a stay is granted, the assets of the applicant will be disposed of, the court may refuse a stay.
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Where there is a risk that the appeal will prove abortive if the appellant succeeds and a stay is not granted, courts will normally exercise their discretion in favour of granting a stay.
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The court will not generally speculate upon the appellant’s prospect of success, but may make some preliminary assessment about whether the appellant has an arguable case, in order to exclude an appeal lodged without any real prospect of success simply to gain time.
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As a condition of a stay the court may require payment of the whole or part of the judgment sum or the provision of security — see discussion at 695.
In Woolworths Ltd v Strong (No 2) (2011) 80 NSWLR 445, Campbell JA referred, at [68], to the importance of the “usual practice” of staying judgments pending appeal where there is a risk that the plaintiff will be unable to repay the money without difficulty or delay if the appeal were to succeed. See also TCN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381 at [15], [16].
[9-0030] Set offs or cross-claims
The existence of set off or cross-claim may, in appropriate circumstances, provide grounds for a stay of execution. The above mentioned principles are relevant to a consideration of those circumstances. See the cases cited in Ritchie’s at [s 135.5]. The ability to pay is an important factor: Grosvenor Constructions (NSW) Pty Ltd (in admin) v Musico [2004] NSWSC 344.
Further, an indemnity, whether raised by way of cross-claim or not, may provide such a ground: State Bank of Victoria v Parry [1989] WAR 240 and see discussion in Lewis v Lamb [2004] NSWSC 322 at [6]–[9].
[9-0040] Particular applications
District Court Act 1973 s 128
If, after judgment in an action, the court orders that the proceedings be stayed during the period within which an appeal may be brought, and an appeal has been brought and security is given to the satisfaction of the Registrar for the judgment and costs, the stay continues until the appeal is disposed of or until the court or Supreme Court otherwise orders: s 128(1) and (2).
An appeal does not operate as a stay in any other way: s 128(3).
Summary judgment
Where the court gives summary judgment to a plaintiff under r 13.1 against a party, if that party has made a cross-claim against the plaintiff, the court may stay enforcement of the judgment until determination of the cross-claim: r 13.2.
Payment by instalments
Where a court makes an order that a judgment order allowing for payment of a judgment debt within a specified time or by instalments, the judgment is stayed while the order is in force: CPA s 107(2). Also see s 119 as to garnishee orders.
Where an application for an instalment order is made, the judgment is stayed until the application is determined or, if refused, an objection to that refusal is determined: r 37.5.
[9-0050] Sample Orders
Legislation
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CPA ss 67, 107(2), 119, 135(1), 135(2)
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Companion Animals Act 1998 s 24
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District Court Act 1973 s 128(1), (2)
Rules
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UCPR rr 13.1, 13.2, 37.5, 49.10, 50.7, 51.44