DOUGLAS v SUPER DIVISION DEMOLITION C. THEOS & SONS PTY LTD [1997] NSWCA 93

DOUGLAS v SUPER DIVISION DEMOLITION C. THEOS & SONS PTY LTD

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

REGISTRAR Jupp 17 February 1997

[1997] NSWCA 93

Registrar Jupp. The appellant to the appeal has filed a notice of motion seeking a stay of the judgment of Windeyer J which is the subject of the appeal. That judgment dismissed the plaintiff's action against the second and third defendants, who are the second and third respondents, with costs. Effectively what the notice of motion is seeking is a stay of the costs order.

A bill of costs was served on the appellant on 11 October 1996 and this notice of motion was subsequently filed on 27 November 1996. The bill of costs has not been tendered but I have been advised that it claims costs of approximately $45,000. This amount is likely to be reduced by some amount in the event the appellant files a notice of objection and the bill is assessed. The appellant has not been able to provide a ballpark figure on what they think the assessed costs will be.

A notice of objection has not yet been filed and there is some dispute between the parties as to why this is the case. The appellant has filed an affidavit indicating that he has a net worth of approximately $122,000. There is some uncertainty as to the reliability of that figure as a large proportion of that amount is the value of house which he owns jointly with another person. The financial situation of the second and third respondents is not known. The appellant served a notice to produce which was returnable today but no documents were produced.

The appeal was originally filed in April 1995 and as a result of delay reduction programs in the Court of Appeal it is likely that it will be listed for hearing within a short period of time. It is likely to be listed in May or June of this year. That being the case there appears to be some utility in staying the costs order to the extent that the amount of any costs that are determined to be payable in respect of the proceedings below not be payable until the appeal has been determined, and the judgment below affirmed or set aside.