Hansen v Northern Land Council [1999] NTSC 115

plaintiff. His Honour's judgment did not quantify the damages payable to

By consent on 4 August 1999, his Honour Justice Angel referred the

On 9 August 1999, the Northern Land Council filed a Notice of Appeal

against the judgment of his Honour Justice Angel. A copy of the Notice of

Appeal is annexure A to the affidavit of Robert Angus Gosford sworn 5

On 31 August 1999, the appeal book index was settled by the Registrar and

the appeal was listed for hearing on 7, 8 and 9 December 1999.

On 15 September 1999, the Master made an order quantifying the damages

payable pursuant to the judgment in the amount of $29 5,000. The Master

made a further order staying execution of the judgment until 7 October

The defendant's application for a stay of execution is opposed by the

Section 57 of the Supreme Court Act provides as follows:

Where an appeal to the Court under section 51(1) has been

order, on such conditions, if any, as it thinks fit, a stay of the

whole or any part of a proceeding under the judgment appealed

by order, on such conditions, if any, as it thinks fit, suspend

the operation of a judgment to which the appeal, in whole or in

Subsection (1) does not affect the operation of any provision

made by or under any other law in force in the Territory or by t he Rules for

Except as expressly provided by this section or by the Rules or

any other law in force in the Territory, the institution of an appeal does not

"(1) Subject to any other law in force in the Territory, an appeal

operate as a stay of execution or of proceedings under

The principles applicable on the question whether a stay should be granted

in this case are set out in Enterprise Gold Mines NL v Mineral Horizons NL

(No 1) [1988] NTSC 5; (1988) 91 FLR 403 at 410:

"... the principles applicable upon this application are as follows. To

succeed, the applicant must make out a case which warrants the

discretion to stay being exercised in its favour. The court has a

general discretion on the question of granting a stay and the terms on

which it will be granted. In exercising its discretion the court will

consider the balance of convenience and what is fair and just as

between the parties. If it is established, for example, that there is a

real risk that the appeal will be nugatory without a stay, in the sense

that there is a real risk that it will not be possible for a successful

appellant to be restored substantially to its former position if the

judgment of the warden's court is executed, a stay will normally be

granted: see Scarborough v Lew's Junction Stores Pty Ltd [1963] VR

129 at 130. The court will not speculate on the applicant's prospects

of success in its appeal, unless it appears not to have an arguable

case. The terms of any stay must fairly take account of the interests

In exercising the discretion this Court has, I have concluded that the

"balance of convenience and what is fair and just between the parties" is to

grant the stay at least until the scheduled date of the commencement of the

hearing of the appeal which is 7 December 1999 (see Mengel v Northern

Territory of Australia [No 2] [1993] NTSC 23; (1993) 113 FLR 160).

The reason for this conclusion is that the defendant has an appeal listed to

commence hearing in a little over one months time. Whilst I am not able to

assess the merits of the appeal or its prospects of success it appears to be a

bona fide appeal in the sense that the expedition with which it has proceeded

and proximity of hearing date of the appeal indicate it is not merely an

appeal lodged as a delaying tactic or to avoid the payment of a debt

(Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed)

(1985) 2 NSWLR 685 at 695, Enterprise Gold Mines NL v Mineral Horizons

NL (No 2) [1988] NTSC 5; (1988) 52 NTR 13).

The defendant argued that there is a real risk that the appellant will be

unable to recover the full amount it would have to pay under the judgment if

the appeal succeeds. There is evidence the plaintiff has substantial financial

encumbrances and prima facie does not have the assets or income to repay

the judgment amount if the appellant is successful. However, I consider in

this particular case that the decisive factors in favour of granting the stay

Accordingly, I have not come to any final conclusion as to the financial

position of the plaintiff in the sense that failure to grant the stay could result

in the appellants not being able to recover their money if successful.

I will hear submissions as to any conditions to be imposed on the order for a