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. Whether it was necessary for his Honour to do so is not a matter upon which I express an opinion. But because of these matters and the contention of Toga in relation to them, application has been made to his Honour, as it has been put 'informally', to deal with the matter by either clarifying the verdict given or at least referring to the matter in his judgment. For these reasons, it is suggested, formal judgment has not yet been entered. I assume that it is for the plaintiff to enter judgment, and it may be the plaintiff has refrained from doing so because he is waiting the outcome of these matters. The second matter arises from the form of the Notice of Appeal. I must confess that on a first, but not inadequate, reading of the Notice of Appeal I would have doubted that the issues raised in the appeal went to the liability of the TogaCompany to the plaintiff in respect of the total amount of the damages. I would have read the Notice of Appeal as being directed merely to issues of apportionment between the parties, but not so as to disentitle the plaintiff to recover the total amount of the verdict and judgment from either one of them. However, Mr Hunt has submitted that having regard, for example, to order | in the Notice of Appeal, the contention of his client is, as evidenced by the Notice 2 UNREPORTED JUDGMENTS of Appeal, to the effect that the appeal intends to raise the issue of whether his client is liable to the plaintiff. If that issue is to be raised, it may be wise for his client to make that abundantly clear in the Notice of Appeal. However, I would not pre-empt the Toga Company from arguing that issue and I shall deal with this application upon the basis that there can be spelled out in the Notice of Appeal a claim that the Toga Company is not liable at all to the defendant and that, as the first order sought indicates, there should have been judgment in its favour against the plaintiff. On that basis, there is a ground made out for a stay. I am informed by the parties that the amount payable by the other defendant, the Karhugh Company, has already been paid and the plaintiff has a substantial sum. It is not suggested that the stay would operate to the prejudice of the plaintiff or impose any hardship in that regard. Mr Turner for the plaintiff quite properly raised the issue as to whether there was any indication that the Toga Company would be able to meet a judgment if it was ultimately recorded against it; Mr Hunt has indicated to the court that hisclient is, if I may use the phrase, backed by a reputable insurance company and that no issue would arise in that regard. In all the circumstances I think it is appropriate that a stay of execution on the judgment be granted pending the determination of the appeal. I will make the usual order for a stay. The effect of it will be that unless the court makes further order pending the determination of the appeal, the execution of the judgment as and when it is entered will be stayed pending the determination of the appeal or further order. A question arises as to the costs of the present application. Mr Turner indicated that he read the Notice of Appeal as not involving his client in any issue of liability. As I have indicated, he is in reasonably good company in that regard. However, taking the Notice of Appeal to have the effect that I have indicated, that is not an answer to the application. Had the matter been clear from the Notice of Appeal it may be that the parties would have come to an agreement in relation to the stay of execution of the judgment. The court would expect parties in circumstances such as these not to incur the costs of formal applications when the court's order may well be anticipated to be such as I have indicated. In all the circumstances I think the proper order to be made is that the costs of the present application be the costs of the other parties in the appeal, that is, the parties other than Toga Building Company. That will mean that if Togasucceeds in the appeal it will not have the costs of this application. If the other parties succeed then they will have the costs of this application. It would be prudent, in order to prevent misunderstanding, for the matter to be dealt with by the Appeal Court when the appeal is to be disposed of. However, that is the order in regard to costs that I propose to make. I will therefore grant a stay in the terms that I have indicated and make an order for costs as I have indicated. Orders accordingly.