AUSTRALIAN RACING DRIVERS' CLUB LTD v GRICE [1998] NSWCA 26

AUSTRALIAN RACING DRIVERS' CLUB LTD v GRICE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY JA 23 March 1998

[1998] NSWCA 26

Priestley JA The motion before the court which was filed on the 19th of last month asks that execution of orders made in the District Court be stayed until an appeal against those orders has been determined.

The orders in question were made by his Honour Judge Taylor of the District Court in the second half of 1996, a notice of appeal being filed first on 4 October of that year and subsequently in amended form on 12 November of that year.

The orders made were in favour of the plaintiff in the proceedings, Mr Grice, who had brought a claim against three defendants in the alternative. The first defendant was the Australian Racing Drivers' Club Ltd; the second Alfa Romeo (Australia) Pty Ltd and the third, Mr Longhurst. Mr Grice succeeded against the club and not against either of the other two defendants. The judgment was entered in his favour for a sum in the order of $21,000 inclusive of interest. The judge granted a stay upon finalising his orders, for twenty-eight days, that being the period within which an appeal could be brought, and that being the period relevant to s128 of the District Court Act which entitled the defendant against whom judgment had been pronounced to give security to the satisfaction of the Registrar for the amount of the judgment debt including an amount to be assessed by the Registrar in respect of costs and to obtain a stay of proceedings until the appeal were disposed of or until a court ordered otherwise, upon provision of that security. No application was made pursuant to s128.

The basic reason that has brought the present application before the court today is a combination of two factors, one that the trial judge made Bullock orders in regard to the costs of the second and third defendants against whom the plaintiff's action had failed, the result being that the club will eventually be responsible to the plaintiff for the whole of the proper costs of the three defendants. Estimates of the costs have been made which have led the plaintiff and the other parties to believe that they are very considerable in total as claimed, being something in the order of $120,000, although for the applicant club today Mr Burn has submitted that that figure may be expected to be considerably reduced when the cost assessor to whom the assessment of these costs has been committed has finished his work.