TOGA BUILDING COMPANY PTY LTD v KARHUGH PTY LTD [1993] NSWCA 270

TOGA BUILDING COMPANY PTY LTD v KARHUGH PTY LTD SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY JA 19 April 1993

[1993] NSWCA 270

Mahoney JA. This is an application for a stay of execution upon a judgment pending the determination of the appeal.

On 9 March 1993 McInerney J gave judgment for the plaintiff against the two defendants, Karhugh Pty Ltd and Toga Building Company Pty Ltd The judgment was given upon the basis that his Honour found each of the defendants to be negligent. His Honour apportioned the amount of the damages which he proposed to award, namely, $329,784.64, between the two defendants, the first defendant to pay $230,849.25 and the second defendant $98,935.39. However, as I understand the effect of the judgment, having regard to the findings of negligence that the judge made, each of the defendants would be liable to the plaintiff for the full amount of the judgment, but the amount which as between themselves they would have to bear would be apportioned as his Honour indicated.

Application has been made by the Toga Company for a stay of execution. The position is rather more complicated than itnormally would appear, for at least two reasons. The first of them is that I understand formal judgment has not yet been entered. In saying this I do not direct criticism to the parties. The position appears to be that, on the contention of the Toga Company, it suggested that the judge, although he apportioned the liability for the judgment in the manner to which I have referred, did not in his judgment refer to the reasons why he apportioned the amount in this way; in particular he did not refer to, as it is contended, contractual indemnities or other matters operative as between the parties upon the basis of which, as I infer, Toga would suggest that it should not have been liable at all or at least for a lesser amount.