Lockhart Shire Council v. King [2005] NSWCA 236

New South Wales Court of Appeal

CITATION: Lockhart Shire Council v. King [2005] NSWCA 236

HEARING DATE(S): Matter dealt with in Chambers on written material only.

JUDGMENT DATE: 12 July 2005

JUDGMENT OF: Handley JA at 1; Hodgson JA at 6; McClellan AJA at 14

DECISION: Order that opponent to pay to the claimant $27,167.31.

CATCHWORDS: PROCEDURE - Appeal - Judgment for plaintiff set aside - Later application for return of money paid as a condition of a stay of execution - Whether service of application on solicitor sufficient - Whether interest should be awarded - Whether condition as to payment of money appropriate.

Alexander v. Cambridge Credit Corporation Ltd (1985) NSWLR 685 CASES CITED: TCN Channel 9 Pty. Ltd. v. Antoniadis (No.2) (1999) 48 NSWLR 381

Lockhart Shire Council - claimant PARTIES: Juana Mardones King - opponent

FILE NUMBER(S): CA 40630/03

Leitch Hasson Dent, Sydney for claimant SOLICITORS: Commins Hendriks, Wagga Wagga for opponent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC289/01

LOWER COURT JUDICIAL OFFICER: Sidis DCJ

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40630/03 DC 289/01

HANDLEY JA HODGSON JA McCLELLAN AJA

Tuesday 12 July 2005 LOCKHART SHIRE COUNCIL V. KING Judgment 1 HANDLEY JA: I agree with Hodgson JA but wish to add some supplementary remarks of my own. 2 In my opinion the trial judge should not have required the appellant to pay part of the judgment as a condition of the stay of execution she granted. The plaintiff, who, it appears, was a pensioner without assets, was in no position to repay the amount without delay or difficulty if the appeal succeeded. In all probability the amount received was appropriated by her lawyers in payment of their costs without significant personal benefit to the plaintiff. 3 This was not a case where liability was conceded, or would not be in issue on appeal. A condition requiring part payment may properly be imposed in cases of that nature where the appeal will relate only to questions of quantum or apportionment. 4 The appellant was not bound to submit to the condition requiring part payment imposed by the trial judge. Under SCR Pt 51 r 15 this Court has original jurisdiction or power, which it can exercise at its own discretion, to grant or refuse a stay and it is not confined to reviewing a discretionary order of the trial judge in the exercise, by leave, of its appellate jurisdiction. See Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685, 692. 5 When the trial judge imposed this condition the appellant should have applied to this Court for an unconditional stay which, on the facts known to the Court, would have been granted. This was made clear by TCN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381. 6 HODGSON JA: On 25 May 2004, the Court upheld an appeal from a judgment of the District Court which awarded damages of about $70,000.00 to the opponent. It now appears that, as a condition of a stay granted by the District Court, the claimant Council had paid $34,198.40, $27,167.31 to the opponent and $7,031.09 to the Health Insurance Commission. At the time of the Court's judgment, no application was made for an order for repayment. 7 Now, the Council has applied by Notice of Motion for an order that the opponent repay $27,167.31, and (it would appear) also so much of $7,031.09 as has been refunded to the opponent (the Notice of Motion says refunded to the claimant, but this appears to be a typographical error). The Notice of Motion also seeks such further orders as the Court deems necessary. 8 There has been no appearance on behalf of the opponent. Service has only been by mail to the solicitors who acted for the opponent on the appeal. However, there is in evidence correspondence that indicates that the opponent is aware of the claim for reimbursement, and that she raises in opposition merely that she is unable to repay because she is a pensioner without assets. 9 Submissions provided by the Council contend that the evidence shows that $6,380.90 has been refunded to the opponent by the Health Insurance Commission, and the submissions seek an order for payment of $33,548.21 plus interest at 9%, amounting to a further $5,280.07. 10 I do not think that service on solicitors acting on the appeal, one year after conclusion of the appeal, is of itself sufficient. However, the material indicates that the opponent is aware of the claim, and opposes it only on the basis of inability to pay. 11 The evidence as to payment of $6,380.90 to the opponent by the Health Insurance Commission is unsatisfactory, consisting of some unclear documents and hearsay from an employee of the Health Insurance Commission. In the circumstances, I am not prepared to act on it. 12 No interest is claimed in the Notice of Motion. I would not in any event be prepared to award interest at the generous Supreme Court rate of 9% in these circumstances. The Council does not seek costs of this application and I would not award costs. 13 For those reasons, I would not on the material before me order repayment of the $6,380.90, or award interest; so that in my opinion the appropriate order is that the opponent pay to the Council $27,167.31. 14 McCLELLAN AJA: I agree with Hodgson JA and with the supplementary remarks of Handley JA. **********