LAKE MACQUARIE CITY COUNCIL v DAY [1997] NSWCA 183

LAKE MACQUARIE CITY COUNCIL v DAY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER JA 17 November 1997

[1997] NSWCA 183

Sheller JA This is an application by Lake Macquarie City Council for an order that execution on and all proceedings before Taylor DCJ in the District Court on 27 October 1997 be stayed until further order.

The claimant was the defendant in proceedings brought by the opponent, Ivy May Day, to recover damages for an injury she claimed to have suffered on 21 March 1996 whilst, as she claimed, she was a pedestrian on Pemmull Street, Toronto. She claimed to have fallen as a result of the claimant's negligent construction or maintenance of an area of pavement.

The application is supported by an affidavit of Deborah Pickard sworn 3 November, 1997. In that affidavit it is said that the transcript of proceedings in the court below and the reasons for judgment are not yet available.

Accordingly, it seems to me that there is no material before the Court which enables me to form any view one way or another about the prospects of the appeal.

It is true that annexed to the affidavit are two separate reports, the first said to have been relied upon by the opponent and the other by the claimant at the trial. Counsel for the claimant has told me that the basis of the appeal is that there was no evidence before the Court of any negligence for either the construction or maintenance of the particular pavement area.

The opponent has had filed on her behalf an affidavit by her solicitor, Penelope Jane Hunter, of 14 November, 1997.

The amount of the verdict in favour of the defendant is just over $15,000. There is nothing before me which enables me to conclude that if, in accordance with his Honour's order, the amount of the judgment is paid to the opponent and the claimant proceeds with and succeeds in the appeal, the opponent will not be in a position to repay the amount paid.