CHARLES THEO COMINO, AGATHOCLES AGATHOCLEOUS CONSTANTINE & SPERO PITSIKAS v NICHOLAS PETER MANETTAS; VAN COONEY & JEFFREY STUART DUNN v NICHOLAS PETER MANETTAS [1993] NSWCA 71

CHARLES THEO COMINO, AGATHOCLES AGATHOCLEOUS CONSTANTINE & SPERO PITSIKAS v NICHOLAS PETER MANETTAS; VAN COONEY & JEFFREY STUART DUNN v NICHOLAS PETER MANETTAS

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA 28 June 1993

[1993] NSWCA 71

Clarke JA. There are two applications for stays of execution on judgments entered by Cole J in this matter. The applications are brought on behalf of Comino, Constantine, Pitsikas, Cooney and Dunn on the one hand and on behalf of Nicholas Peter Manettas on the other hand. The proceedings out of which they arise are complicated and I will endeavour to avoid introducing any further complexity by going into the detail of those proceedings. It is sufficient for me to note that Nicholas Peter Manettas was sued by the Government Insurance Office which recovered against him a judgment which, with interest, was in the amount of $3,443,017.20 as at 16 July 1992. Manettas for his part sued Comino and others, who were his solicitors, seeking indemnity and other relief against them and he recovered a judgment which, as at the same date, with interest, amounted to $4,964,059.76.

At first instance the solicitors themselves were unsuccessful in their claim for indemnity against parties who have been described in these proceedings as the insurers. However, this Court upheld an appeal from that part of the judgment at first instance withthe consequence that as at present the solicitors are entitled to indemnity against the insurers although the precise order that is to be made by this Court is still a matter of some uncertainty.

What can be said is that this Court indicated that the insurers were bound to indemnify the solicitors against the judgment and interest to which I have already referred. The insurers have now said that they intend to seek leave to appeal from the decision of this Court and their application is to be heard on 9 August 1993. Because no formal order has been made against the insurers, or for some other reason of which I am not aware, the insurers do not themselves seek a stay of execution. Clearly there being no final judgment against them there is nothing really to stay. However, the Government Insurance Office has shown an enthusiasm for recovering against Manettas and that enthusiasm has led to the present application both by Manettas and the solicitors, being Comino and others. They have supported their application on two bases. First, they said that they seek only a stay until shortly after the hearing of the leave application, that is, until 16 August, and they have also each put on evidence which demonstrates at the very least that there would be a considerable financial embarrassment suffered by each of them if the Government Insurance Office was able to execute its judgment forthwith.