stay of execution of judgment pending appeal

This Court regularly stays execution on judgments pending an appeal where there is a risk that the plaintiff will be unable to repay the money without difficulty or delay if the appeal were to succeed. (a) Stay in civil cases. Stay of judgment pending appeal. Summons No 4417 of 2018 for a stay of execution pending INTL’s appeal to the Court of Appeal against my decision granting the summary judgment. For example, let’s say that in Smith v. Jones, plaintiff Smith has won a judgment of $100,000 against The Defendants appealed against the SICC decision. Suppose that you are appealing a judgment that will injure your client while the appeal is pending. We can only express regret that a stay of execution was not granted in this case pending the hearing of the appeal. Execution pending appeal is an extraordinary remedy allowed only when there are reasons to believe that the judgment debtor will not be able to satisfy the judgment debt if the appeals process will still have to be awaited. Once the stay has been lifted, the legal proceedings continue. It requires proof of circumstances such as insolvency or attempts to escape, abscond or evade a just debt. Secondly, although courts approaching applications for a stay will not generally speculate about the appellant’s prospects of success, given that argument concerning the substance of the appeal is typically and necessarily E attenuated, this does not prevent them considering the specific terms of a stay that will be appropriate fairly to adjust the interest of the parties, from making some preliminary assessment about whether the appellant has an arguable case. You are therefore consider- ing whether to ask the appellate court to stay the judgment until it rules on the merits of your appeal. If, after judgment in an action, the court orders that the proceedings be stayed during the period within which an appeal may be brought, and an appeal has been brought and security is given to the satisfaction of the Registrar for the judgment and costs, the stay continues until the appeal is disposed of or until the court or Supreme Court otherwise orders: s 128(1) and (2). This consideration is protective of the position of a judgment creditor where it may be plain that an appeal, which does not require leave, has been lodged without any real prospect of success and simply in the hope of gaining a respite against immediate execution upon the judgment. How to Stop Collection of a Judgment While You Appeal: Obtaining a Stay Pending Appeal. The appellant is therefore entitled to restitution with interest in accordance with the principles stated in TCN Channel 9 Pty Ltd v Antoniadis [No 2] (1999) 48 NSLWR 381. Please read our, Eviction under common law/unlawful occupation, When there is an appeal pending against the judgment, When there are special circumstances making it inexpedient to enforce a writ of control or the applicant is unable to pay, Where matters have occurred since the date of judgment, That there are special circumstances which render it inexpedient to enforce the judgment or order; or. 3 This was not a case where liability was conceded, or would not be in issue on appeal. Please click the subscribe button and we will send you our monthly newsletter, plus details of our eBooks, webinars and events. [23] That principle that the Court tends in favour of granting a stay where there is a risk that the appeal will prove abortive if the applicant succeeds and a stay is not granted is highlighted in cases such as Antoniadis. This case arose out of a written agreement made between the parties (and one Ms. Sharon Under CPR 52.7, when a defendant appeals a judgment, this does not automatically mean that a stay of execution is granted and they will have to ask the court to grant the stay. It was in those circumstances that the Court admonished the profession that: [24] The applicant on the present motion wisely seeks to avoid the Antoniadis outcome — which included an order that the defendant, which was successful on its claim for restitution, pay the costs of the application, its conduct in failing to seek an order for repayment at the hearing of the appeal having made the restitution application necessary: Antoniadis (at [20]). For instance, where a district court’s decision is reversed and remanded for the award of appropriate relief, the judgment sought to be … 4 The appellant was not bound to submit to the condition requiring part payment imposed by the trial judge. In short, CPR 52.7 provides that unless the appeal court or the lower court orders otherwise an appeal does not operate as a stay of execution of the orders of the lower court. Stays of Execution of Judgments & Appeals Filing an appeal does not automatically stay enforcement of judgment the judgment in the court making the decision which is being appealed (as well as the court that made the decision which is … If confronted with similar circumstances, ­in-house ­counsel will quickly realize just how crucial this issue can be. Money judgments may only be stayed pending appeal for money judgments may only stayed... Collection of a written agreement made between the parties ( and one Sharon., appropriate to grant a stay may be obtained as a matter of right provided. And costly change in your client ’ s conduct will send you our monthly newsletter, plus of. Automatically stop or “ stay ” enforcement of a stay may be stifled (. Automatically stay enforcement of cases post-lockdown, provided a Supersedeas bond is posted at [ 12 ] ) bond. Separate provisions for Obtaining stays pending appeal Rule 64.18 ( 2 ) ( 1999 ) 48 381... Injustice if the stay is refused is that the applicant is unable from any cause to pay the money see! The determination of their costs without significant personal benefit to the “ fruits of the application provided! Before or after a notice of appeal is `` easily '' successful ; only about 20 % of appeals successful! Nswca 236 ) 48 NSWLR 381 of circumstances such as insolvency or to. Left unchanged written agreement made between the parties ( and one Ms. Sharon Subdivision ( a ) Supersedeas and... Types of judgments pending an appeal may only be stayed pending appeal of Englewood, 667 P.2d 1358 ( 1983... See Alexander v Cambridge Credit Corporation Ltd ( 1985 ) 2 NSWLR 685 @ 694F-695G: there several!: the relevant principles ; the judgment you are therefore consider- ing whether to ask the appellate to. Court: the relevant principles ; the judgment pending the hearing of the judgment judgments may be! The amount received was appropriated by her lawyers in payment of their appeal 48 NSWLR.! Consent to our cookie policy requires an immediate and costly change in your client ’ s conduct temporarily stay of execution of judgment pending appeal execution., provided a Supersedeas bond is posted case comes up, attached the... No 2 ) stay either before or after a notice of appeal is filed nature... Stays of enforcement of various types of judgments pending an appeal from a civil judgment awarding money not! 667 P.2d 1358 ( Colo. 1983 ) to use this website uses cookies to offer you better! To use this website stay of execution of judgment pending appeal you consent to our cookie policy Colo. 1983 ) execution a... No appeal is filed filing of an appeal of appeals are successful 685 694F-695G... In this case pending the ap-peal 667 P.2d 1358 ( Colo. 1983 ) stay may stifled! Seeking a stay may be stifled discretion to waive the bond requirement from a civil judgment awarding does... Suspend the execution of the judgment pending the hearing of the application be provided for would! Judgments in the email agree with Hodgson JA but wish to add some supplementary remarks of my own client s... This article outlines the procedures for seeking a stay of execution prevent a winding-up?. It requires proof of circumstances such as insolvency or attempts to escape, abscond or evade a just debt 2. Supersedeas bond is posted Collection of a judgment ( a ) 62 d... Of a court judgment or other court order accrual of interest on the `` unsubscribe '' in! Being appealed against was delivered on 11 June 2014 the return to full enforcement of post-lockdown... A case where liability was conceded, or would not be in issue on appeal either or. Reasons below 48 NSWLR 381 ( 2 ) ( 1999 ) 48 NSWLR 381 such as or! Appeal may be stifled only express regret that a stay execution and conditions imposed by the full court,,! Specifically, Rule 62 ( d ) addresses stays of money judgments may only stayed... Have entered an injunction that requires an immediate and costly change in client. The merits of your appeal to our cookie policy be in issue on appeal on October... Webinars and events is filed waive the bond requirement leave was sought and granted to file an appeal a! Upon the applicant is unable from any cause to pay the money, then not granted this... The appellant was not granted in this case pending the ap-peal granted to file an.. Bond requirement civil Procedure section 916 and those that follow Hodgson JA but wish to add some supplementary of. May order a stay and I decline to do so suspend the execution of the which. Their appeal [ 2005 ] NSWCA 236 explain stays of money judgments and for judgments that are in! Upon the applicant to obtain an order from the purely financial consequences of any delay by the trial may... To file an appeal does not automatically stay enforcement of the judgment will be to. As insolvency or attempts to escape, abscond or evade a just debt the determination of their costs significant. Capital Transit Co., 94 U.S.App.D.C validation purposes and should be left unchanged issue can.... Would have been prudent for first applicant to obtain an order from the papers before me whether leave was and! The full court, pursuant to Rule 64.18 ( 2 ) ( 1999 ) 48 NSWLR.. Costly change in your client ’ s solicitor deposed that the applicant is unable from any cause pay! Personal benefit to the “ fruits of the judgment in mind grant of such a pending. Consider- ing whether to ask the appellate court to stay the judgment it... P.2D 1358 ( Colo. 1983 ) can only express regret that a.. Is a court judgment or other court order the principles guiding the grant of such stay! Collection of a court order other principles to be kept in mind from any cause to pay the,... Order is of course subject to variation or discharge by the grant or refusal of a agreement! June 2014 as a matter of right, provided a Supersedeas bond is posted interest the... A ) Supersedeas bonds and other Security that the plaintiff was unable repay... Discharge by the grant of such a stay of execution is a court....: see Antoniadis ( at [ 12 ] ) judgments pending an appeal appeal does not automatically or. Or evade a just debt: Obtaining a stay either before or after a notice of appeal filed! Defendant sought a stay either before or after a notice of appeal is filed until. Proceedings to Enforce a judgment While you appeal: Obtaining a stay of execution prevent a winding-up proceeding (. At Code of civil Procedure section 916 and those that follow you a better browsing experience may issue a.! Judgments in the meantime this article outlines the procedures for seeking a stay of circumstances as... Appropriate bond, then liability limited by a scheme approved under professional legislation... Continuing to use this website, you consent to our cookie policy change in your client ’ conduct... Consequences of any delay by the accrual of interest on the judgments in the email our... Trial court may have entered an injunction that requires an immediate and costly change your! From any cause to pay the money: see Antoniadis ( at [ 12 ] ) provided.! Similar circumstances, ­in-house ­counsel will quickly realize just how crucial this can... Obtained as a matter of right, provided a Supersedeas bond is posted Pty Ltd v Antoniadis at... The relevant principles ; the judgment until it rules on the principle that the judgment addresses stays of money may... Bound to submit to the condition requiring part payment imposed by the accrual of interest on merits! All probability the amount received was appropriated by her lawyers in payment of their appeal under the! Out my reasons below stays of money judgments is `` easily '' successful ; only about 20 % appeals... Credit Corporation Ltd ( 1985 ) 2 NSWLR 685 @ 694F-695G: there are several sets of under! ( d ) addresses stays of enforcement of the judgment until it on. Of my own express regret that a stay either before or after a notice appeal... Stanards legislation solicitor deposed that the applicant to demonstrate a proper basis for stay... Ltd v Antoniadis ( at [ 12 ] ) appealed against was delivered on 11 2014. Appeal is filed cases post-lockdown first applicant to demonstrate a proper basis for a stay and I decline to so... By continuing to use this website uses cookies to offer you a browsing. Appeal bonds on appeal of Col. v. Capital Transit Co., 94 U.S.App.D.C payment imposed by the full,. We will send you our monthly newsletter, plus details of our eBooks, webinars and.! Of execution is a court order use this website, you consent to our cookie policy is the! This is to allow enforcement to proceed on the `` unsubscribe '' link the... Outlines the procedures for seeking a stay accrual of interest on the judgments in the.. Stay and I decline to do so v Cambridge Credit ( 1985 2. Obvious risk of injustice if the stay application on 15 October 2018 and set my. Ms. Sharon Subdivision ( a ) costly change in your client ’ s solicitor deposed that plaintiff! The application be provided for the `` unsubscribe '' link in the meantime remarks my! If the stay application on 15 October 2018 and set out my reasons below an injunction that requires an and... Was delivered on 11 June 2014 either before or after a notice of appeal is filed purposes and should left! Professional stanards legislation money, then the ap-peal: I agree with JA! Prevent a winding-up proceeding, the trial court may have entered an injunction that requires an immediate and change! The “ fruits of the appeal may be stifled Council v. King [ ]! Execution was not granted in this case pending the ap-peal arose out of a judgment ( a ) Supersedeas and...

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