STATE RAIL AUTHORITY OF NSW v MEMOVIC [1989] NSWCA 193

STATE RAIL AUTHORITY OF NSW v MEMOVIC

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA 9 October 1989

[1989] NSWCA 193

Mahoney JA On 2 June 1989 judgment was given for the plaintiff against the defendant by his Honour Judge McDevitt. His Honour found for the plaintiff and gave judgment for her of $100,000. He made an order that execution upon the judgment be stayed on condition that the defendant pay to the plaintiff $50,000. That was, as appears from the evidence, the ultimate order his Honour made, and the present application proceeded on the basis that that effectively was what was done. The defendant - the appellant - the State Rail Authority of New South Wales - has applied to the court for an order staying the execution upon the judgment upon the basis either that no payment be made or alternatively that payment be made into Court.

The matter has been before the court on several occasions and there has been unfortunate delay in procuring the necessary part of the record of the District Court. There has been placed before the court this morning the judgment of the learned judge and the evidence of the plaintiff, or the relevant portion of it.

The Authority has appealed to this Court on grounds which contest both its liability for payment and the amount of the judgment that was awarded.

Mr Mackey for the Authority has placed before the court the relevant portion of the transcript of the evidence of the plaintiff in order to indicate, as his argument suggests, that the issue raised on liability is a matter of substance and not a matter of triviality or of form.

It is not necessary for me to go in detail into the grounds of appeal raised in respect of liability, but I arn satisfied that the matter is an appropriate matter to be argued. The argument may be very brief but I think the Authority is entitled to have the matter dealt with on appeal.