New South Wales Court of Appeal CITATION : Amalgamated Television Services P/L v John Marsden [2001] NSWCA 289 FILE NUMBER(S) : CA 40499 of 2001 HEARING DATE(S) : 30/07/01 JUDGMENT DATE : 3 September 2001 Amalgamated Television Services Pty Limited PARTIES : v John Marsden JUDGMENT OF : Meagher JA at 1; Powell JA at 1 LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT 20223 of 1995 FILE NUMBER(S) : 20592 of 1996 LOWER COURT Levine J JUDICIAL OFFICER : COUNSEL : A: J T Gleeson SC with K Rees R: In Person SOLICITORS : A: Mallesons Stephen Jacques R: In Person DECISION : Upon the Opponent undertaking to the Court:; 1. THAT, in the event of the appeal by the Claimant being upheld in whole or in part, he will, within 28 days of the delivery of the Judgment of the Court of Appeal, or within such further time as may be allowed by the Court of Appeal or a Judge thereof on application made in that behalf, pay or cause to be paid to the Claimant, or to such person or company as the Claimant shall in writing direct, the amount received by him pursuant to the Judgments delivered by Levine J on 27 June 2001, or the amount by which that amount exceeds the amount (if any) substituted by the Judgment of the Court of Appeal, together in either case, with interest thereon at court rates from the date of receipt by the Opponent to the date of payment by the Opponent; 2. THAT he will not: (a) file any certification of determination issued by a costs assessor in respect of the costs of the trial at first instance; or (b) otherwise take any steps to enforce such certification of determination; without first giving 28 days' written notice to the Claimant's solicitor. ORDER 1. THAT the hearing of the appeal be expedited; 2. THAT the Motion otherwise be dismissed; 3. THAT the costs of the Motion be costs in the Appeal. THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40499/01 MEAGHER JA POWELL JA Monday, 3 September 2001 AMALGAMATED TELEVISION SERVICES PTY LIMITED v JOHN MARSDEN JUDGMENT 1 THE COURT: This is a motion by Amalgamated Television Services Pty Limited to stay a judgment given by Levine J in favour of the opponent, a well-known Campbelltown solicitor. The proceedings before Levine J were heard from 15 November 1999 to 21 November 2000; judgment was given on 27 June 2001. When we say "the proceedings" we really mean two actions; Nos. 20223 of 1995 and 20592 of 1996. 2 In matter No. 20223 of 1995 his Honour entered a verdict for the defendant (the present claimant) in respect of the cause of action pleaded with respect to imputation 4(b) in the Fourth Further Amended Statement of claim. In respect of the other imputations his Honour directed entry of a verdict in favour of Mr Marsden in the sum of $309,165.25 (including interest). The defendant was ordered to pay Mr Marsden's costs, on a party/party basis up to a certain date and on an indemnity basis thereafter. 3 In matter No. 20592 of 1996 his Honour found for the defendant in respect of imputation 4(c) in the Third Further Amended Statement of Claim, but in favour of Mr Marsden in respect of the other imputations in the sum of $275,698.63 (including interest). The defendant was ordered to pay Mr Marsden's costs, partly on a party/party basis and partly on an indemnity basis. 4 In the upshot, we were told, the applicant is liable to pay Mr Marsden about $500,000 on his verdicts, and about $6,000,000 for costs. The notice of motion seeks a stay of proceedings in respect of both sums of money. 5 As to the costs, a temporary solution to the contest between the parties was reached by the claimant's acceptance of a personal undertaking by Mr Marsden to the Court not to: (a) file any certification of determination issued by a costs assessor in respect of the costs of the trial at first instance; or (b) otherwise take any steps to enforce such a certification of determination, without giving 28 days written notice to the claimant's solicitor. 6 That disposes of any application to stay the costs order. 7 An appeal has been filed by the claimant in respect of all his Honour's orders. 8 The trial was an extremely long one, lasting over a year, inviting the evidence of hundreds of witnesses and the examination of hundreds of exhibits, with the main action punctuated by many procedural applications and interlocutory appeals, the whole enterprise culminating in a 7-volume judgment. Needless to say, for the purposes of the present motion we have not had the opportunity to examine all the papers. 9 On the motion Mr Justin Gleeson SC appeared for the claimant and Mr Marsden appeared in person. As far as Mr Marsden was concerned, except for one emotional outburst before lunch (for which he promptly apologised after lunch) Mr Marsden behaved with decorum and did not seem disadvantaged not to have the services of a solicitor or barrister. 10 It is elementary now that Mr Marsden, having won his verdict, is entitled to maintain it in the absence of any special circumstances, which would dictate a contrary result. In the present case Mr Gleeson submitted that there were such special circumstances, viz that if Mr Marsden were paid $500,000 by the claimant, and subsequently won it's appeal, it would probably not be able to recover its money. This is made all the more likely if one considers Mr Marsden's precarious financial position. 11 That is set out in the affidavit of Mr Richard Potter, his solicitor, sworn 24 August 1999, paragraphs 8, 9, 10 and 11 of which read as follows: 8. As at 20 August 1999 the Respondent/Plaintiff had incurred approximately $1,295,000 in legal fees (including solicitors' fees, counsel's fees and disbursements but not including Ms Higinbotham's fees) for the Proceedings and related proceedings before the Court of Appeal which he has not yet paid. This sum is in addition to legal fees which the Respondent/Plaintiff has already paid. 9. The Respondent/Plaintiff informs me and I verily believe that he has also paid a substantial amount to other solicitors concerning various investigations of these allegations by the New South Wales police service. Respondent/Plaintiffs/ financial situation 10. I am informed by the Respondent/Plaintiff and verily believe that: (a) he owns a property at Campbelltown which he estimates is worth approximately $850,000 which is subject to a first mortgage to Wayne Flynn in the sum of $200,000 and a second mortgage to Phillips Fox for the balance ($650,000); (b) he owns a property at Noosa which he estimates is worth $1,500,000 which is subject to a first mortgage to the ANZ Bank in the sum of $800,000 and a second mortgage to Phillips Fox for the balance ($700,000); (c) he owns a property in Sydney which he estimates is worth $1,500,000 which is subject to a first mortgage to the ANZ Bank in the sum of $540,000, a second mortgage to Michael Boda in the sum of $50,000, a third mortgage in the sum of $250,000 to the partners of Marsdens and finally a mortgage to Phillips Fox for the balance ($660,000); (d) he owns a property at Port Douglas which he estimates is worth $450,000 which is subject to a first mortgage to ANZ in the sum of $449,000; (e) he owns an art collection which he estimates is worth $300,000 which is subject to a mortgage to Tony and Ron Perich in the sum of $300,000; (f) he owns shares in a private company known as ELPA Pty Limited which he estimates are worth $2,000,000 which he has mortgaged to Phillips Fox; (g) he owns unencumbered shares in Amalgamated Television Services Pty Limited which he estimates are worth $2,000; (h) his drawings from the partnership, Marsdens solicitors, together with drawings from the partnership's service company were: (i) $336,000 for the 1998/1999 financial year (an approximate figure only as the accounts are yet to be finalised by the partnership's accountant); (ii) $347,000 for the 1997/1998 financial year; and (iii) he has cash in hand which at the time of swearing this affidavit is $250.00 11. We are informed by the Respondent/Plaintiff and verily believe that: (a) all of his personal bank accounts are in overdraft; (b) he is not receiving any income from ELPA Pty Limited; (c) he expects that his partnership drawings will be reduced as he is no longer as active in the partnership as before due to his involvement in the Proceedings and related Court of Appeal proceedings along with the stress he suffers as a result of this; and (d) if he were to sell any of the assets referred to in sub-paragraphs 10 (b) to (g) above, each sale would attract substantial capital gains tax liabilities in the Respondent/Plaintiff. 12 (It may be noted that this evidence is as at August 1999, and much has happened since, but both parties were content that we should take this information as being more or less applicable to his present situation.) 13 On the face of it, then, it would appear that the claimant had a formidable case for being granted a stay. This case was further strengthened when Mr Marsden agreed that, if he received the sum of $500,000 from the claimant, he would utilise it by paying his creditors. Thus, any chance of recovering it would, on the face of it, look hopeless. 14 Mr Marsden appreciated this, but offered the Court an undertaking to repay the money if required. How he would do that he did not explain, but do it he said he would. It was clear that he appreciated the consequences of failing to perform such an undertaking. 15 After anxious consideration, we are inclined to accept Mr Marsden's offer. This is very largely due to the undeniable fact that he will need money to conduct his case in the long and difficult appeal, which he faces and which, on present indications, will cost a good deal in excess of $500,000. 16 For these reasons, we propose that the following orders be made: UPON the Opponent undertaking to the Court: 1. THAT, in the event of the appeal by the Claimant being upheld in whole or in part, he will, within 28 days of the delivery of the Judgment of the Court of Appeal, or within such further time as may be allowed by the Court of Appeal or a Judge thereof on application made in that behalf, pay or cause to be paid to the Claimant, or to such person or company as the Claimant shall in writing direct, the amount received by him pursuant to the Judgments delivered by Levine J on 27 June 2001, or the amount by which that amount exceeds the amount (if any) substituted by the Judgment of the Court of Appeal, together in either case, with interest thereon at court rates from the date of receipt by the Opponent to the date of payment by the Opponent. 2. THAT he will not: (a) file any certification of determination issued by a costs assessor in respect of the costs of the trial at first instance; or (b) otherwise take any steps to enforce such certification of determination; without first giving 28 days' written notice to the Claimant's solicitor. ORDER 1. THAT the hearing of the appeal be expedited; 2. THAT the Motion otherwise be dismissed; 3. THAT the costs of the Motion be costs in the Appeal. ****** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.