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. It may be that their evidence goes further and demonstrates that if the Government Insurance Office were to take that stay neither Manettas nor the solicitors could pay their liabilities in full. 2 UNREPORTED JUDGMENTS In order to bolster the applications, both applicants, and by that expression I include all persons encompassed within the expression 'the solicitors', have indicated to the court that they give the following undertakings in the event a stay is granted. Those undertakings are in this form: That he or she will not dispose of any assets pending the determination of the application for a stay save in the ordinary course of business, the ordinary living expenses of himself and his family and the payment of the costs of these proceedings.""There is also proffered to the court an undertaking by Helen Comino, who is the wife of one of the parties, in the terms of an undertaking she previously gave to Kirby P and which is in writing and was tendered before Handley JA in proceedings heard on 31 May 1993 and marked Ex A in that application. Before coming to the attitude of the Government Insurance Office I ought to mention one further complicating matter. The insurers, although not themselves seeking a stay, have offered to pay to the Government Insurance Office the sum of $3,800,000 free of interest in order to alleviate any prejudice that might be suffered by the Government Insurance Office by the grant of a stay. The terms upon which they are prepared to make that payment appear in a document which was tendered before Handley JA on 10 June 1993 and marked Ex D and was again tendered before me today and marked Ex A. The Government Insurance Office is not satisfied. It opposes a stay. It says that any delay may prejudice it in its endeavour to recover the fruits of its judgment against Manettas. It should, therefore, it contends, be allowed immediate to endeavour to recover its judgment. Furthermore, it says that the offer by the insurers to pay $3,800,000 free of interest to it does not alter its attitude. It points out that that figure is approximately $150,000 less than the amount which would be presently owing by Manettas if interest was taken into account. It also relies upon the fact that its ability to use the money would not in the present financial climate enable it to recover as much from that sum as it would if money was left outstanding and interest at the rate set out in the Supreme Court Act continued to run. I might say I do not find this a very attractive argument because it is no part of the philosophy of the fixing of an interest rate under the Supreme Court Act that creditors should hold off receiving money so that they can benefit from the rates of interest offered pursuant to the recovery of a judgment, which may be higher than would be secured on the open market. It seems to me that it may well be that if the application for leave fails or if it succeeds and the appeal fails, the Government Insurance Office will be much better off if it accepts the insurers" offer than it would if it was left to chase Manettas himself for the moneys. I recognise the argument that the Government Insurance Office has a judgment, that there has been no appeal from that judgment and that it should be able to recover the fruits of the judgment. However, in an application of this nature the court is invested with a wide discretion designed to ensure it administers justice between the parties, or, to put it another way, reaches a just and equitable decision. Having regard to the shortness of the time of the stay, the magnitude of the offer made by the insurers, the difficulties in which Manettas and the solicitors would be in if the proceedings were not stayed and the undertakings which have been proffered, it is my clear opinion that the demands of justice require that a stay be granted on terms until 16 August. I should add that although I had earlier understood the claimants to be seeking stays until the High Court proceedings \WRARLES THEO COMINO, AGATHOCLES AGATHOCLEOUS CONSTANTINE & SPERG PITSIKAS v NICHOLAS PETER MANETTAS; VAN COONEY & JEFFREY STUART DUNN v NICHOLAS PETER MANETTAS (Clarke JA) had been determined, Mr Rayment of Queens Counsel, who appeared for Manettas, said that that was a mistaken view and that his application at this stage was for a stay only until 16 August. The stay that I grant is subject to the terms of the undertakings which have been given and that the insurers abide, as they have indicated they will, by the terms of Ex A tendered before me. Orders accordingly.