HATCHWYN PTY LTD and ANOR v FERGUSON [1994] NSWCA 124

HATCHWYN PTY LTD and ANOR v FERGUSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA 4 July 1994

[1994] NSWCA 124

Mahoney JA This is an application for a stay of execution upon a judgment given by his Honour Judge Moore in the District Court on 24 May 1994. The Judge gave judgment for the plaintiff for $184,120 in a motor vehicle accident. The notice of appeal indicates there is no ground of appeal which could result in a verdict for the defendant. The two issues on appeal are quantum of damages to be awarded and contributory negligence.

The main matter to which reference has been made, although not the only matter, is contributory negligence. The verdict entered followed the reduction of the total verdict otherwise available to the plaintiff by twenty per cent on account of contributory negligence. The defendant claimant contends that, having regard to the circumstances of the case, the reduction for contributory negligence should be greater. Putting aside the issue as to quantum of damages and if there is no interference with the Judge's assessment in that regard, in order to warrant interference with the Judge's order the reduction for contributory negligence which would have to be achieved on appeal would represent a reduction of fifty per cent in the verdict. This is the assessment put to the Court by counsel.

The question that arises is whether this Court should interfere with the discretion of the trial Judge. I am conscious of the fact that the Court exercises its own discretion in this regard and that the stay now sought is a stay granted by this Court, and not the District Court Judge.

His Honour made an assessment, based on his assessment of the circumstances of the case, which resulted in him making an order that there be a stay conditional upon payment of $120,000. I am told that the sum of $92,000 has already been paid.