Vale v Vale & Anor [2001] NSWCA 124

New South Wales Court of Appeal

CITATION : Vale v Vale & Anor [2001] NSWCA 124 FILE NUMBER(S) : CA 40667/99 HEARING DATE(S) : 9 April 2001 JUDGMENT DATE : 9 April 2001

Linda Ann Vale - Claimant/Appellant PARTIES : Malcolm Geoffrey Vale - First Respondent/First Opponent NRMA Insurance Limited - Second Respondent/Second Opponent JUDGMENT OF : Giles JA

LOWER COURT JURISDICTION : District Court LOWER COURT DC 7839/97 FILE NUMBER(S) : LOWER COURT Sidis DCJ JUDICIAL OFFICER :

COUNSEL : K Ottesen - Claimant I M Jackman - Opponent SOLICITORS : Mark Mulock & Co, Penrith - Appellant/Claimant Sparke Helmore - Second Respondent/Opponent CATCHWORDS : Judgment for defendant and plaintiff ordered to pay costs - plaintiff appealed - costs assessed and separate judgment for amount of costs - bankruptcy proceedings brought - plaintiff applies for stay of execution on costs - appeal arguable but not strong - on evidence, able to pay costs and would recover them if appeal succeeded - also on evidence, bankruptcy would not bring end to appeal because plaintiff's husband able to and would fund appeal - stay refused. ND DECISION : Notice of Motion filed 27 March 2001 dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40667/99 DC 7839/97

GILES JA

Monday 9 April 2001 Linda Ann VALE v Malcolm Geoffrey VALE & Anor JUDGMENT

1 HIS HONOUR: The appellant in the appeal and applicant in the notice of motion is the unsuccessful plaintiff in proceedings in the District Court. In those proceedings she claimed damages for injuries suffered in a motor vehicle accident, alleging that her husband was the driver of the motor vehicle and joining him as defendant. The relevant insurer was joined as second defendant pursuant to s 66A of the Motor Accidents Act, and the proceedings were heard with the insurer as the effective defendant. 2 There was agreement on quantum, and it was not in dispute that if the applicant's husband had been driving the motor vehicle there had been negligence. The issue was whether the applicant or her husband had been driving the motor vehicle. After a lengthy hearing, on 15 July 1999 Sidis DCJ published reasons in which she found that the applicant's husband had not been driving the motor vehicle, and accordingly ordered that there be verdicts for the defendants. The applicant was ordered to pay the costs of the other parties. The formal orders were made on 11 August 1999. 3 Wrongly believing that leave to appeal was necessary, the applicant filed an ordinary summons for leave to appeal on 7 December 1999. In March 2000 that summons was dismissed with no order as to costs. In May 2000 the insurer agreed to the filing of a notice of appeal. Also in May 2000 the insurer gave the applicant notice of an application for assessment of the costs which she had been ordered to pay. Again wrongly believing that the appeal brought a stay of that order, the solicitor for the applicant wrote to the solicitors for the insurer saying that there was no need for objections to the assessment. At the end of May 2000 the solicitors for the insurer told the solicitor for the applicant that they were not aware of any stay in relation to the order for costs. The solicitor for the applicant does not seem to have taken this further, and in fact did nothing in relation to the assessment of costs which was then undertaken. 4 At the beginning of July 2000 leave was granted by consent to file the notice of appeal out of time, and the notice of appeal was filed. About a week later the formal application for assessment of costs was served. In due course the assessment was made, and on 7 December 2000 judgment for the insurer against the applicant was entered in separate proceedings in the District Court in the sum of $152,664.58. 5 The appeal had been proceeding in the normal course, and in February 2001 was set down for hearing on 19 June 2001. That remains its date, although I was informed that an application was to be made for a later date because the applicant's counsel were not available on that day. 6 Also in February 2001 a bankruptcy notice was served on the applicant, founded on the judgment for the assessed amount of the costs. There was correspondence in which the insurer was asked in various ways to hold its hand in the bankruptcy proceedings, but it declined to do so. Time for compliance with the bankruptcy notice expired on 26 February 2001. 7 On 27 February 2001 the solicitor for the applicant foreshadowed applying for a stay at the expiry of forty-eight hours. At the beginning of March 2001 the creditors' petition was issued. It was served on 23 March 2001. 8 At last that produced some action, and on 27 March 2001 the applicant filed a notice of motion in the appeal by which, although it was inappropriately worded, she in substance sought a stay of execution of the order for costs made by Sidis DCJ. 9 The insurer was the second opponent to the notice of motion. The applicant's husband was the first opponent. He has not appeared and did not participate in the argument today on the notice of motion. Both the applicant and the insurer said that they considered that he had no real interest. I consider that it is appropriate for the matter to be determined without his participation. For the reasons to come, the interest which he has - and I think he does have an interest as a matter of fact - was and is relevantly the same as that of the applicant, and I see no prejudice to him in proceeding in his absence. 10 The applicant submitted that the insurer had been on notice from shortly after Sidis DCJ made her orders that an appeal was to be prosecuted, even though the steps taken to prosecute it were flawed. She submitted that opposition to assessment of costs, carrying with it opposition to payment of costs, pending the outcome of the appeal had been made known in May 2000, even though the resistance to the course taken by the insurer was also flawed. In those circumstances it was said, notwithstanding that this application was made late, the lateness was understandable although perhaps not excusable and could not be regarded as having prejudiced the insurer. The appeal had reasonable prospects of success, and in those circumstances, according to the applicant the stay should be granted. If it were not, it was submitted, the maintenance of the appeal could be prejudiced. 11 I have outlined the rather sorry history of the matter, and am prepared to proceed on the basis that the delay in making this application does not count against the applicant. 12 As to the prospects of success, I have read the notice of appeal on which the applicant will rely and the written submissions filed by her and by the insurer respectively for purposes of the appeal. The question for Sidis DCJ was one of fact, although the grounds of appeal seek to raise one and possibly a second, error of law on her Honour's part. It is not possible for me to form other than a very general view of the prospects of success of the appeal in the light of the materials to which I have been taken, and the reasons of Sidis DCJ. I proceed on the basis that the appellant has an arguable but not strong case on appeal, the difficulty in overcoming an essentially fact-based conclusion needing no emphasis. 13 As to the third element of the applicant's submissions, there I think there is more difficulty for her. There was no evidence from the applicant's side explaining how the prosecution of the appeal would or might be impeded. There was evidence led by the insurer indicating that as at early 1999 the applicant and her husband were registered as proprietors as joint tenants of seven parcels of land, only one of which was mortgaged, and that by transfers for nominal consideration in April 1999, some weeks before the hearing before Sidis DCJ, the parcels were transferred to the applicant's husband as sole proprietor. This may or may not have some more sinister connotation, but for present purposes it is enough that it shows that the applicant did have substantial assets in the form of land in early 1999 but divested herself of them, and that the applicant's husband does have substantial assets in the form of land. It was accepted, and I should say quite properly so by counsel for the applicant that the applicant's husband should be regarded as in her camp, and it was said that he was supporting her in the appeal. He obviously enough has an interest in the success of her appeal, in that the family unit stands to benefit from it. 14 The evidence did not include any explanation for failure to pay the costs other than so far as it might be inferred that it was thought the appeal would succeed. Payment could have been made if funds or assets were held, and it was not suggested that the insurer would be unable to repay the costs if the appeal succeeded. If bankruptcy were to mean that the appeal was not prosecuted, that would be because the applicant failed to pay the costs when, on the evidence before me, it appears she could have done so and should reasonably have done so: that is not a situation in which an application for a stay in order to avert bankruptcy is well founded. 15 Further, bankruptcy of the applicant would, in the circumstances I have described, be most unlikely to mean an end to her appeal. I infer that the applicant's husband and his assets would be devoted to prosecution of the appeal, and I can see no reason why, if the applicant and her husband had the faith in the appeal propounded on this application, they should not cause it to proceed despite bankruptcy of the applicant. Bankruptcy does not mean an end to an appeal, and if it can be seen with sufficient confidence that the appeal will be maintained the threat of bankruptcy does not provide grounds for a stay in circumstances such as the present. 16 In the result, I do not think that the applicant has made out grounds for a stay. I order that the notice of motion filed on 27 March 2001 be dismissed with costs. ________