Application for stay of execution of judgment debt
Principles to be applied in stay application pursuant to r 64.39
Quick Take
1An applicant for a stay of execution pending appeal must provide adequate and reliable evidence of their financial position to allow the court to assess the asserted risk of bankruptcy or winding up; bare assertions of inability to pay within statutory timeframes, without detailed financial evidence, are insufficient to establish the special circumstances required.
2Where a respondent judgment creditor demonstrates improved solvency and sufficient assets to repay the judgment debt if the appeal succeeds, the risk that a successful appeal would be rendered nugatory by dissipation of funds is not established.
3The principle in Kalifair Pty Ltd v Digi-Tech (Australia) Ltd — that a respondent suffers no prejudice from a stay where the applicant has no assets — is inapplicable where publicly available information suggests the applicants possess substantial assets.
