WATER RESOURCES COMMISSION v GRAHAM [1989] NSWCA 223

WATER RESOURCES COMMISSION v GRAHAM

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY JA 21 August 1989

[1989] NSWCA 223

Mahoney JA This is an application brought by the Commission seeking an order that execution on the judgment entered by McInerney J on 11 July 1989 be stayed. The position as has been put to the court by counsel is that a judgment was given in favour of the plaintiff by a jury in July 1989. The amount of the judgment, as described in the evidence on affidavit before the court, is $220,000. The court has been informed that, with deductions for worker's compensation and with the addition of interest the amount is to the order of $238,800; I do not think the difference is of moment in the present application.

The appeal has been lodged upon two broad grounds. The first ground relates to, as it is alleged, improper communications made between a Sheriff's Officer and the jury during the course of their deliberations. It is no doubt to be submitted on the appeal that this will warrant the verdict being set aside.

The second ground asserts that the quantum of the verdict cannot be supported by the evidence. Presumably it will be submitted that the jury verdict was so wrong as, within the appropriate principles, to warrant it being set aside as excessive.

His Honour granted a stay of execution in relation to the matter for a period but, as I understand the position, that stay has now ceased. The stay was granted, as it was described in the affidavit evidence before the court, on terms, including the term that the defendant pay $100,000 to the plaintiff. I infer that, in fact, that $100,000 was not paid. Apparently no steps were taken to execute the judgment, notwithstanding that the sum of $100,000 was not paid.

I do not have a copy of his Honour's judgment in relation to the matter, and I therefore do not have the benefit of knowing the grounds on which he acted. But I am informed and I will act upon the basis that that stay was only for a period of time and that that period has expired. There is, therefore, nothing to prevent the plaintiff now executing upon the judgment.