CIVIL PROCEDURE — application for stay of enforcement of judgment pending leave to appeal — where primary judge made orders enforcing arbitral awards as judgment pursuant to Commercial Arbitration Act 2010 (NSW) — where applicant’s appeal confined to primary judge’s dismissal of stay application — whether arguable case on appeal — whether applicant would suffer prejudice if stay not granted — whether balance of convenience favours granting stay to preserve status quo — whether stay should be granted on terms that applicant pay judgment debt into court — practical solution in the interests of both parties
Quick Take
1Where the balance of convenience on a stay application pending appeal is finely balanced, a court may impose a condition requiring the applicant to pay the judgment debt into court as a practical solution that preserves the status quo and protects the successful party's ability to recover the debt.
2The paramount object of the Commercial Arbitration Act 2010 (NSW) to facilitate fair and final resolution of disputes, and the statutory limits on curial intervention in arbitral processes, are relevant considerations weighing against the grant of a stay of enforcement of judgments giving effect to arbitral awards, particularly where the awards themselves are not challenged on appeal.
3An appeal confined to challenging a primary judge's discretionary refusal of a stay — being a matter of practice and procedure — faces the dual hurdle of establishing House v The King error and overcoming appellate courts' general reluctance to grant leave on procedural matters.
