PARKER v NRMA [1993] NSWCA 205

PARKER v NRMA SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA

13 December 1993

[1993] NSWCA 205

Clarke JA. This is an application by the claimant for a stay of execution of the order for costs in these proceedings and in the proceedings before the trial court pending the determination of the claimant's leave application to the High Court which is expected to be heard in April next year. The claimant seeks an alternative order that the taxation of costs in these proceedings and in the proceedings in the court below be stayed pending the determination of the same application.

The grounds that are put before the court in support of the application are that unless there is a stay of the costs order then in the event that the claimant is ultimately successful in securing leave and then in winning in the High Court the costs occasioned in the taxation will have been wasted. In a sense, the submission has some point but, of course, if the claimant is ultimately successful all previous costs orders will be set aside and then as a general rule one would expect that he would be the beneficiary of a costs order in respect not only of the earlier proceedings but also of those steps in the taxation which have been taken by both parties.

On the other hand if the opponents are successful then the granting of a stay will delay their entitlement to interest on costs as certified in due course. The claimant has sought to meet those problems by submitting to a term that if I grant a stay today he would pay interest on the delay between the time the costs would have been taxed if a stay had not been granted and the date upon which they ultimately did become payable. That time is according to the submissions of the claimant's counsel to be determined by the taxing officer.

I was at one time disposed to think that this might be a reasonable compromise but having regard to the fact that there has previously been a stay granted in respect of the taxation of costs at first instance and the absence of any consent to treat the delay between the time that those costs would normally have been taxed and the time that they will be now, I am in the end not persuaded by the proffered term to make an order which does not seem strictly to be justified in the circumstances of the case.