The Nominal Defendant v Cencic [2000] NSWCA 297

New South Wales Court of Appeal

CITATION : The Nominal Defendant v Cencic [2000] NSWCA 297 FILE NUMBER(S) : CA 40857/99 HEARING DATE(S) : 23 October 2000 JUDGMENT DATE : 23 October 2000

PARTIES : The Nominal Defendant v Nino Cencic JUDGMENT OF : Priestley JA at 1

LOWER COURT JURISDICTION : District Court LOWER COURT DC 6128/98 FILE NUMBER(S) : LOWER COURT Hosking DCJ JUDICIAL OFFICER :

COUNSEL : Claimant - K.J. Kelleher Opponent - R.I. Goodridge SOLICITORS : Claimant - Sparke Helmore Opponent - Firths - The Compensation Lawyers CATCHWORDS : Motion for stay DECISION : See par 22.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40857/99 DC 1628/98

PRIESTLEY JA

Monday, 23 October 2000

THE NOMINAL DEFENDANT v CENCIC

1 HIS HONOUR: In this motion a somewhat awkward situation has arisen but the practical side of the situation seems to me to be so clear that it seems to be wasteful of everybody's time to track down the source of the awkwardness and to deal with the matter strictly in accordance with what the current orders in the matter are and then deal with the claimant's motion in accordance with the rules and merits of the motion actually brought. 2 The overall situation is that his Honour Judge Hosking gave judgment for the opponent in this motion and the plaintiff in the District Court on 14 October last year. He made an award of something in the order of $260,000 damages and he also ordered the defendant to pay the plaintiff's costs of the trial and then ordered a stay of his orders conditional upon half of the judgment sum being paid to the plaintiff within twenty-eight days. Half of the judgment sum was not paid within the time and a motion before Judge Williams of the District Court in January of this year resulted in orders which, according to the evidence before me, were made in accordance with pars 1 and 2 of the defendant's notice of motion. The notice of motion is annexed to an affidavit which has been read before me. Its par 1 said that the condition upon which Judge Hosking ordered his judgment be stayed be extended so far as time was concerned from 28 days to 49 days. Paragraph 2 said that Judge Hosking's judgment be otherwise stayed until the defendant's appeal was disposed of. 3 The awkwardness in the present motion is that the actual terms of Judge Williams' orders of 21 January are not before the court and it seems at least a possibility that there was either more to them or they were not in the exact terms of pars 1 and 2 of the notice of motion. 4 However, on the evidence as it stands, those paragraphs are all I have in the way of the terms of Judge Williams' orders of that day. The orders themselves make it not completely clear whether the stay ordered by Judge Hosking and revived by Judge Williams' orders stayed not only enforcement of payment of the judgment sum but also enforcement of the costs orders. However, the impression I have from the material that is available is that Judge Hosking's costs orders are likely at the moment to be stayed by the orders of Judge Williams. 5 Mr Goodridge for the opponent/defendant has pointed out that on the evidence in the affidavit I earlier referred to, (that of his instructing solicitor Mr Firth) fulfilment of the terms of the stay does not appear to have been accomplished within time. It may be that even if Judge Hosking's original stay order included a stay of his costs orders, the fact that various aspects of the conditions of those orders were not fulfilled within the stipulated time, could mean that the stay has lapsed through non fulfilment of conditions. However, again in the absence of knowing the terms of the stay precisely, I have the impression that it is more likely than not - and I stress I am judging from the materials in the two affidavits before me - the stay is currently extant. 6 The evidence in Mr Firth's affidavit shows that he has quite consistently, in compliance with the rules and the terms of the orders made from time to time both in the District Court and in this, court made known to the solicitors for the defendant/claimant that he was seeking on behalf of his client prompt compliance with all conditions of orders. The material before me also shows that responses to his timely requests were not always made within time; one result of this being that Mr Firth has got on with the business of having the costs of the trial, inter alia, assessed by a costs assessor and has incurred expense in respect of that and has brought proceedings which aim at getting a certificate from the costs assessor a fair way along the trail towards that final certificate. 7 The hearing of the appeal has been fixed for 13 March next which is now slightly more than three court months away from hearing. The time by which the costs assessor will reach the stage of issuing his certificate cannot be predicted with any certainty but it seems unlikely that if the assessment process is allowed to continue it will be completed much before Christmas, or perhaps indeed by Christmas at all. Quite possibly it may not emerge until next year. 8 I should mention at this stage that the motion before the court today is that Judge Hosking's order of 14 October last and orders made by Registrar Irwin this year be stayed until the defendant's appeal is disposed of together with requests for any such other orders as the court sees fit and a request that no order be made as to the costs of the motion. 9 Mr Kelleher for the claimant when the matter was called on for hearing this morning indicated that his client was only pursuing a stay of Judge Hosking's order of last year and was no longer seeking stay of Registrar Irwin's orders of this year. 10 It seems to me that the probabilities are that Judge Hosking's order of last year is currently stayed both as to enforcement of the payment of the judgment amount which remains to be paid, that is the unpaid half, and as to enforcement of the order that the defendant pay the plaintiff's costs of the trial. On the assumption that that is so it nevertheless seems to me that in view of what has happened between the parties, as shown in the correspondence annexed to the affidavits, which has led to the plaintiff/opponent with some justification, becoming well advanced with the assessment process at significant cost, it would be fair for the plaintiff/opponent to be allowed to continue with that assessment process but not to be allowed to enforce payment of the amount certified by the assessor in his certificate before the result of the claimant/defendant's appeal is known. 11 Speaking on an incomplete acquaintance with the materials, including the grounds of appeal, that will be before the Court of Appeal and stressing that this view is entirely a provisional one, it seems to me more likely that the appeal against liability which the defendant is proposing to argue, will be unsuccessful rather than successful. So that the probability to my mind is that in due course the costs of the trial will have to be paid by the appellant/defendant. Therefore, it seems reasonable, in view of what has already happened, to let the plaintiff/respondent continue getting himself into a position where if my tentative view of the probabilities is correct, he will be able to seek payment of the specific sum for costs of the trial without any delay flowing from any stay of the costs order. 12 On the other hand, if I am wrong in thinking there is currently a stay on the costs order, I would be prepared to grant a stay of the same kind as envisaged in what I have just said, that is I would grant a stay of enforcement of payment of the amount in any certificate of assessment of costs but would not stay the process by which the plaintiff/opponent obtains a certificate from an assessor of the amount of costs payable in respect of the trial. So either way I would arrive at the same order. 13 This leaves the question of what is an appropriate way of framing the order that I have in mind. One possibility which I will see what counsel think about would be to say something along the following lines: " I leave all orders currently on foot, on foot until today, and I vary them only to the extent necessary to enable the order I now propose to operate, namely that there be a stay upon the enforcement of so much of the judgment of Judge Hosking relating to the judgment amount as has not already been paid and there be a stay of his order that the defendant pay the costs of the plaintiff of the trial but that there be no stay such as to prevent the plaintiff/opponent from continuing with the assessment process already on foot to the point where the plaintiff/opponent obtains from the costs assessor the final certificate of assessment of costs upon which the plaintiff/opponent's subsequent rights for enforcing the payment of those costs will depend. " (Mr Goodridge submitted it would be sufficient to order liberty to the plaintiff/opponent to proceed with the assessment of costs, however, the plaintiff/opponent be stayed as to the enforcement of those costs.) 14 HIS HONOUR: Mr Goodridge has made a suggestion, which I think is sound, but rather than adopt it in substitution I will add it to what I have already said as clarification and I won't repeat it now. I will need to tidy this order up. What I have said so far I think is probably clear to everybody here. You will be able to operate until I produce a substantially identical but better expressed order. (Counsel indicate agreement.) 15 Now that I have proposed the form of order Mr Goodridge has suggested a better way of putting it. Everybody agreed that they understand the substance of the orders. For the time being I will make orders in terms of what I have proposed myself and add to them Mr Goodridge's suggestion. 16 In the next few days I will issue an amended form of order which everybody can look at and be clear about and which will embody the substance. 17 The remaining part of my reasons deals with the costs of this motion. The claimant in his notice of motion prudently did not ask for any costs of the motion and requested the court make no order as to costs. If, as I have said I think is probably the case, there is already a stay in terms the same as that which was the only stay being asked for by the notice of motion as presented this morning, then the motion was unnecessary and the opponent should have the costs of the motion. If I am wrong about the probability of a stay already being in place, then a different costs order might need to be considered. 18 I think what I will do in order to try and avoid any further expense being outlaid on this aspect of the appeal, is make the order that the costs of the motion be the opponent's costs. I wont make any order that that order take effect immediately and I will also grant liberty to apply. If evidence becomes available that the assumption which I have said is the more probable state of affairs in my view turns out to be wrong the liberty to apply can be exercised by evidence of the actual orders current at the beginning of today being put before me in conjunction with a written submission and if that happens the other party can reply in writing to the written submission within seven days and I will make any further orders that seem appropriate in light of that further material without hearing any further argument or court hearing, unless something major comes up. The liberty to apply is only exercisable within the next fourteen days. 19 In the orders as finally framed have I got into an area upon which either counsel thinks he has not been heard? 20 GOODRIDGE: No your Honour 21 KELLEHER: No your Honour. 22 HIS HONOUR: I make the following orders: All orders currently on foot are to remain on foot subject to my varying them from today only to the extent necessary for there to be operative (a) a stay upon the enforcement of so much of the judgment of Judge Hosking relating to the judgment amount as has not already been paid and (b) a stay of his order that the defendant pay the costs of the plaintiff of the trial but (b) does not prevent the plaintiff/opponent from continuing with the assessment process already on foot to the point where the plaintiff/opponent obtains from the costs assessor the final certificate of assessment of costs upon which any subsequent rights of the plaintiff/opponent to enforce the payment of those costs will depend. Accordingly I order that the plaintiff/opponent be at liberty to proceed with the assessment of the costs of the trial, but be stayed from enforcement of any certificate of costs until further order. The claimant is to pay the opponent's costs of this motion. Liberty to apply within fourteen days in the manner and only for the purposes stated in par 18 of these reasons. **********