MOTOR ACCIDENT MUTUAL INSURANCE PTY LIMITED v KELLY [1996] NSWCA 372

MOTOR ACCIDENT MUTUAL INSURANCE PTY LIMITED v KELLY SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA 11 March 1996

[1996] NSWCA 372

Sheller JA. This is the matter of Motor Accident Mutual Insurance Pty Limited against Kelly. This is an application by an unsuccessful defendant which has appealed for a stay of execution of the orders and judgment of his Honour Judge Moore of 10 October 1995.

The successful plaintiff, Wayne Anthony Kelly, recovered damages arising out of the loss of his car and a consequent claim he made on the defendant claimant under a policy of insurance. The damages awarded by his Honour fell into the following categories: $12,750 for the loss of the motor vehicle; $31,950 for two years economic loss and $12,500 emotional distress, a total of some $57,000 to which his Honour added interest to come up to the amount of the judgment of $77,000.

I indicated during the course of argument that I thought this an appropriate case in which to grant a stay subject to a condition that the claimant pay someamount to the opponent. The amount that I suggested related to the damages for the loss of the motor vehicle and interest thereon. I then invited the parties to consider what would be an appropriate order. That has now been done and short minutes of order signed by counsel have been filed in Court. The only remaining question is the costs of this application. I think there is force in the claimant's submission that it has succeeded in obtaining a stay, on the other hand it is only obtained that on the basis of a condition which effectively was imposed by me.

In all the circumstances I think it appropriate that the costs of this application should be costs in the appeal. Accordingly the orders I make are orders 1 and 2 in the short minutes of order signed by counsel, initialled by me and placed with the papers. The costs of this application will be costs in the appeal.