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[1995] NSWCA 524
appellant. Stay of judgment granted pending determination of the appeal; costs of application (including reserved costs) to be costs in the appeal
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A company that lost at trial and faced winding up proceedings because it couldn't pay the costs order asked the Court of Appeal to freeze (stay) the judgment while it appealed. The Court agreed, noting that the appeal raised a real question about whether a deed was legally binding, and if the company was wound up before the appeal was heard, the appeal would be pointless. The Court didn't need to decide whether the company had an automatic right to appeal or needed permission first.
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WING YIP HOLDINGS PTY LIMITED vy CHANG SUPREME COURT OF NEW SOUTH WALES - COURT OF APPEAL
Sheller JA. This is an application by the appellant, Wing Yip Holdings Pty Limited for a stay of judgment given by his Honour Judge Kirkham on 6 May 1994 pending the determination of the appeal. The matter came before me ex parte on 29 September 1995 when, amongst other orders, an order was made staying the judgment up to and including today. I also made an order that the solicitor for the claimant file an affidavit explaining why the application was not made until the afternoon of 29 September 1995 and why the solicitor for the opponents was not notified that the application was to be made. Such an affidavit was filed within time and I have read it and I accept the explanation and the apology included therein.
On the matter coming back before me today, the opponents oppose any extension of the stay. A question was raised as to the status of the appeal in light of what was said in the judgment of Mahoney JA speaking for the Court on 28 November 1994. That was an application made by the claimant for leave to appeal. Questions were raised in the course of Mahoney JA's judgment as tothe need for that application. There is perhaps some understandable confusion arising from the nature of the notice of appeal that was filed as to the extent to which there was an appeal as of right. However, I do not regard it as necessary for me to pass upon that question. The dispute between the parties appears to be fairly straightforward, namely, whether a deed that was executed and was for under consideration by the trial judge was enforceable or not. In substance, that is the matter, the subject of the appeal.
The hearing before Judge Kirkham generated a taxation of costs which produced a substantial amount of costs recoverable by the successful parties, who are the opponents on this application. As I understand it, proceedings have been commenced under the Corporations Law to have the claimant wound up based upon a failure to pay those taxed costs. In the circumstances, the case is, in my opinion, appropriate for a continuation of the stay up to and including the hearing of the appeal, and I propose to make such an order.
I order that the judgment of his Honour Judge Kirkham made on 6 May 1994 be stayed pending the determinations of the appeal in these proceedings. The costs of this application including the reserved costs will be costs in the appeal.
Stay of judgment granted pending determination of the appeal; costs of application (including reserved costs) to be costs in the appeal