WILLIAMS v MITCHELL [1989] NSWCA 235

WILLIAMS v MITCHELL SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA 5 June 1989

[1989] NSWCA 235

Mahoney JA This is an application by a defendant in a proceeding in the District Court for an order staying the execution upon the judgment. The only evidence before the court is the evidence set forth in the affidavit of Mr Robert. Geoffrey Horton of 19 May 1989. It indicates that an appeal has been lodged to this Court. The grounds of appeal raise the issues of negligence as well as of the quantum of the verdict.

The verdict was apparently one for $69,000 in respect of an injury inflicted on the plaintiff by a motor car not on a public highway. The judgment was given on 13 April 1989. The District Court judge refused an application then made for a stay.

The only ground advanced in relation to this matter is that based upon par 5 of the affidavit of Mr Horton, namely that the plaintiff will turn eighteen years of age during the course of the year and therefore will be entitled to receive payment of the judgment debt. Half of the judgment debt has already been paid to his solicitor. No doubt, if no stay is granted this and the balance of the judgment will be paid to him. It has been said from the Bar table that the plaintiff will turn eighteen in November 1989.

The principles on which stays are granted have been dealt with at length in cases before this Court in recent years and it is not necessary to recapitulate them.

There is before the court no evidence which would suggest that the respondent will not be able to recover the amount of the judgment from the plaintiff if the plaintiff should be unsuccessful in relation to the appeal.

The court has nothing to suggest that the plaintiff is not, for example, an extremely wealthy person from whose assets the amount of the judgment might be recovered.