BADER v JELIC [2010] NSWCA 203

New South Wales Court of Appeal

CITATION: BADER v JELIC [2010] NSWCA 203

HEARING DATE(S): 16/08/2010

JUDGMENT DATE: 16 August 2010

JUDGMENT OF: Handley AJA

EX TEMPORE JUDGMENT DATE: 16 August 2010

DECISION: Order that the proceedings on the judgment of 2 July 2010 in the District Court be stayed pending the determination of the appeal or further order and order that the respondents pay the applicant's costs of the motion.

PARTIES: Edward Bader & Gerardina Bader - Applicants Steven Jelic - Respondent

FILE NUMBER(S): CA 2010/224431

COUNSEL: R Gambi - Applicants E Welsh - Respondent

SOLICITORS: McCabe Terrill Lawyers - Applicants Brydens Solicitors - Respondent

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 08/315357

LOWER COURT JUDICIAL OFFICER: Cogswell DCJ

LOWER COURT DATE OF DECISION: 02/07/2010

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 2010/224431

HANDLEY AJA

MONDAY 16 AUGUST 2010 EDWARD BADER v STEVEN JELIC Judgment 1 HIS HONOUR: On 2 July 2010 his Honour Judge Cogswell entered judgment for the present respondent, the plaintiff in the action, against the present applicants and appellants, the defendants in the action, Edward and Geradina Bader for the sum of $243,250. I don't have a copy of the reasons for judgment of his Honour but I infer from the other material that the action was based on a breach of the duty of care owed by an occupier to a lawful entrant. 2 The defendants appealed and seek the reversal of the judgment. It is common ground that they are insured against the risk which has come home, for the time being at least, in the judgment against them. This means that if the appeal fails the plaintiff will obtain the fruits of his judgment and he is protected in the meantime against some of the consequences of delay by the fact that interest is running on that judgment at court rates. 3 There is evidence that the plaintiff is reliant on Social Security, is without substantial assets, and has a number of medical problems. In these circumstances there is a clear risk that, if the judgment is is enforced pending the hearing of the appeal, the appellants if ultimately successful may not be able to recover what they paid under the reversed judgment. This is a risk which the Court regularly guards against by granting a stay of the judgment if necessary on conditions. In this case the appellants are insured and there is no need to impose any conditions. 4 I therefore order that the proceedings on the judgment of 2 July 2010 in the District Court be stayed pending the determination of the appeal or further order and order that the respondents pay the applicant's costs of the motion. **********