Vo v Tran (No 3)

The defendants seeks a stay of the judgment conditional upon it filing a Notice of Appeal within 28 days and upon the basis that they will pursue any appeal with due diligence.

In support of the defendants’ application reliance was placed upon the observations of Campbell JA in Woolworths Ltd v Strong (No 2) [2011] NSWCA 72 at [66]-[73].

The defendants’ submission was that, as Campbell JA stated in Woolworths Ltd v Strong, the usual practice of this Court is to stay judgment “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”. It was submitted in this case it was clear that the plaintiff is impecunious. It was said that she is unemployed, and remains in Australia on a bridging visa. It was contended that there is no doubt that “there is a risk that the plaintiff will be unable to repay the money without difficulty or delay”.

Accordingly it was submitted that the Court should grant a stay in these proceedings.

In reply, Mr Baran, counsel for the plaintiff, frankly conceded that the plaintiff is “impecunious” and that she could not, in the event that the appeal was allowed, repay the monies from her own resources: T 9:5-10.

Mr Baran also frankly conceded that the trend today is more to order a stay, but nonetheless the Court could at least consider “a partial payout”: T 9.

He submitted that if the stay was to be granted then the defendants should undertake to prosecute the appeal with expedition.

Having considered the competing submissions, I have concluded that in all the circumstances, it is appropriate to grant the stay as sought. Accordingly, judgment is stayed on the following bases:

I reserve any question of costs in relation to the stay application.