› Special circumstances versus broad discretionary approach
Practice and procedure
› Stay of execution
› Balance of convenience
Practice and procedure
› Stay of execution
› Risk of bankruptcy enforcement rendering pending application nugatory
Quick Take
1Under r 66.16 of the Supreme Court Rules 1987 (NT), the discretion to stay execution of a judgment does not rigidly require proof of 'special circumstances'; the preponderance of authority suggests the court should assess whether the proposed challenge is bona fide and arguable, whether refusal may render the challenge nugatory, the balance of convenience, and the interests of justice generally — though the tension between these approaches has not been authoritatively resolved in the Northern Territory.
2Where a judgment creditor foreshadows enforcement by bankruptcy proceedings, the risk that sequestration may transfer control of a pending application to set aside the judgment from the judgment debtor to a trustee in bankruptcy is a relevant consideration favouring a stay, as it may render the pending application practically ineffective before it can be determined.
3A condition requiring payment of the full judgment sum into court as a precondition to a stay may be refused where it would, as a practical matter, amount to requiring satisfaction of the judgment before the application to set it aside has been determined, and where undertakings and an expedited timetable provide a more proportionate means of protecting the judgment creditor's position.
