Application for stay of orders awarding damages against appellant in a contractual claim pending determination of the appeal
Whether appeal would be rendered nugatory if a stay is not granted
Quick Take
1A corporate appellant's appeal is not necessarily rendered nugatory by the prospect of winding up if a stay is refused. Unlike an individual bankrupt under s 60(2) of the Bankruptcy Act 1966 (Cth), no provision of the Corporations Act 2001 (Cth) automatically stays proceedings brought by a company in liquidation, and a liquidator may pursue the appeal. Kalifair Pty Ltd v Digi-Tech (Australia) Ltd should be treated with caution.
2Where the appellant is not trading and is already balance-sheet insolvent independently of the judgment debt, so that winding up appears likely whatever the appeal's outcome, enforcement causes little relevant prejudice beyond that to its creditors. On the facts, delay in appointing a liquidator to investigate the company's affairs weighed against a stay, as did the absence of any offer of security.
3Reasonable prospects of success on an appeal ground are of limited weight where unchallenged alternative findings would sustain most of the judgment. Here those findings were the unpaid rent award, the cl 3.23 yielding-up breach, and the finding that the damage was not fair wear and tear. Asserted reputational harm to a parent company does not favour a stay where the parent could itself pay or fund the judgment debt.
