NICHOLSON v NICHOLSON [1995] NSWCA 321

NICHOLSON v NICHOLSON

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA 10 April 1995

[1995] NSWCA 321

Sheller JA. This is an application by notice of motion of 7 April 1995 by three parties who were defendants in proceedings heard by Mathews J in which a verdict was awarded to the opponent.

One of the issues in the proceedings was the alleged contributory negligence of the opponent. That issue turned in part upon the wearing of a seatbelt and the effect of s 74 of the Motor Accidents Act. The opponent appealed to this Court and the appeal was allowed. The appeal and cross appeal were dismissed.

The issue of contributory negligence in this Court was resolved in favour of the opponent. This Court gave its decision on 8 December 1994.

On 3 January 1995 the opponent lodged an application for special leave to appeal to the High Court. On 30 March 1995 this Court made its orders in the appeal. Those orders included a judgment in favour of the appellant for $2,209,930.

Prior to the hearing in the Court of Appeal as a condition of the grant of the special application by the claimant, an amount of $903,321 was paid by the claimant to the opponent. Since the judgment in this Court, no further amount has been paid nor until this time has any application been made for a stay of this Court's order.

I have been informed by Mr Parker, who appears for the claimant, that the claimant may at some stage seek special leave in effect to cross appeal to the High Court if the opponent's application for special leave to appeal is successful. No such application has been made by the claimant up to this time. Prima facie it seems to me that the opponent is entitled to the fruits of the orders made by this Court.

If the application for special leave to appeal by the opponent is successful the amount of the verdict will not be reduced. It may be increased.