Stevanovic v Stjelja & Ors [1999] NSWSC 247

New South Wales Supreme Court CITATION : Stevanovic v Stjelja & Ors [1999] NSWSC 247 revised - 31/08/99 CURRENT JURISDICTION : Common Law Division FILE NUMBER(S) : 16978 of 1985 HEARING DATE(S) : 17/03/99 JUDGMENT DATE : 26 March 1999

Zivadin Stevanovic (plaintiff) Milan Stjelja (defendant) PARTIES : Zoran Stjelja (defendant) Ross Sterritt (defendant) Babic Milorad (defendant) JUDGMENT OF : Hidden J at 1

COUNSEL : F. Fletcher (plaintiff) A. McInerney (defendant) SOLICITORS : Taylor & Scott (plaintiff) Dunhill Madden Butler (defendant) CATCHWORDS : CASES CITED : Andrews v John Fairfax & Sons (1979) 2 NSWLR 184 DECISION : Stay of execution of judgment provided part payment made to plaintiff.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HIDDEN J

FRIDAY 26 MARCH 1999

16978/85 - ZIVADIN STEVANOVIC v MILAN STJELJA & ORS

JUDGMENT - Stay Application Reasons for judgment

1 HIS HONOUR: In this matter I have given judgment and the matter to be dealt with this morning is the defendants' application for a stay on terms pending an appeal. 2 The plaintiff does not oppose a stay as such, provided an appropriate interim payment is awarded. In any event, I think it would be appropriate to grant a stay, applying the principles enunciated by Maxwell J in Andrews v John Fairfax & Sons (1979) 2 NSWLR 184. The real question is the interim payment. 3 The defendants would not argue with a sum of around $400,000. The plaintiff seeks $1.2 million, in an affidavit of 17 March 1999, on the basis that it would provide him with accommodation and a reasonable income. In the same affidavit he undertakes not to dispose of any home or other asset he might acquire with that money, pending the outcome of the appeal. 4 I am sympathetic to the plaintiff's position, but it does appear to me to be a very large proportion of the judgment to order as an interim payment. The judgment itself amounts to about $1.4 million. 5 I have arrived at an interim payment with an eye to the amount by which the judgment might be reduced if the appeal were successful. It seems that the challenge is primarily to my assessment of economic loss, past and future. My assessment of the amount by which the judgment might be reduced in the event of a successful appeal is necessarily speculative, but the reduction could be something of the order of $500,000 to $600,000. For these reasons I consider the appropriate interim payment to be $850,000. 6 I note that a notice of appeal has been filed. Accordingly, I would grant a stay of execution of the judgment, pending the outcome of the appeal, provided the defendants make an interim payment to the plaintiff of $850,000 within 21 days. 7 Mr Fletcher raised with me on the last occasion the question of whether I could order that Social Security payments not be refunded until the appeal is determined. If it seems I do have the power to make such an order I may be sympathetic to it, but I will grant liberty to apply on that aspect. 20548/95 - Zivadin Stevanovicv FAI General Insurance 8 In matter 20548 of 1995, the defendant seeks an unconditional stay of execution of the judgment pending the outcome of the appeal. The plaintiff does not oppose that order and I make that order. 9 Exhibits will stay with the file until the determination. **********