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. During the course of the hearing of this motion it has been indicated that the appellant is prepared to give an undertaking not to dispose of, deal with, encumber or further encumber the assets set out in paragraphs 2 (a), (b) and (c) of his affidavit sworn 12 February 1997, without due notice to the respondent. Although I am not certain this is going to provide full security for the costs below, having regard to the near hearing of the appeal I feel that this undertaking should form adequate security until the appeal is determined. On the otherhand I do not wish to impede the assessment of the costs to the extent that the appellant may be fully aware of what his potential liability for costs will be if the appeal is dismissed. To that end I order that the appellant serve any objection to the bill of costs no later than 3 March 1997. The stay that I order is to the effect that a judgment of the assessed costs, whether that be a judgment for the full amount claimed in the bill or for a lesser amount after it has been assessed by a costs 2 UNREPORTED JUDGMENTS assessor, is not to issue until after the appeal has been determined, or a further or other order of the Court. The costs of the motion will be costs in the appeal. Orders accordingly.