GREEN v CUTMORE [1991] NSWCA 127

GREEN v CUTMORE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS JA 22 April 1991

[1991] NSWCA 127

Samuels JA On 19 September 1983, Rita Cutmore, the first opponent in this application, and her husband, were tenants of the claimant in Tamworth. On that day an iron fence which had been erected by the claimant dividing the property from the footpath, fell on the first opponent and injured her foot.

In 1988 her action for damages came on in the District Court at Tamworth before McDevitt DCJ. She sued the claimant, alleging negligence or breach of the duty which he, as lessor, owed to her as a lessee - at least so far as I can make out from the judgment, that was the way in which the action was brought - and the claimant cross-claimed against the second opponents who were insurance brokers, alleging their failure to equip him with a policy of insurance which would have indemnified him against any damages which he might be ordered to pay to the first opponent.

In due course the learned Judge gave judgment for the first opponent against the claimant in the sum of some $37,000, but found for the second opponents against the claimant. The claimant, therefore, was in the unfortunate situation of being liable to pay damages to the first opponent without any indemnity or recourse to insurance.

Thereafter there followed a series of events which, on the evidence before me, which may not of course tell the whole of the story, seems wholly deplorable. Counsel who appeared at the trial for the claimant, advised within a few days that an appeal should be brought, but nothing was done. I do not attempt to summarise the whole of the evidence which is contained in the two affidavits sworn by the claimant in support of the application.

At some stage, comparatively early on, that is in September 1988, the sheriff served a bankruptcy notice on the claimant, but that remedy was not pursued against him. I interpolate that the first opponent has not been represented here today. The claimant's solicitor, Mrs Comerford, has given evidence that she had a conversation with the first opponent's solicitor this morning and he told her that his client could not afford to be represented and neither consented to nor opposed the relief which the claimant sought.