New South Wales Court of Appeal CITATION: White v Thompson [2010] NSWCA 262 HEARING DATE(S): 20/9/10 JUDGMENT OF: McColl JA at 1 EX TEMPORE JUDGMENT DATE: 20 September 2010 DECISION: Motion dismissed with costs. CATCHWORDS: PROCEDURE – civil – costs orders – stay pending appeal – no issue of principle CATEGORY: Procedural and other rulings Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 CASES CITED: White v Thompson [2009] NSWSC 1103 White v Thompson [2009] NSWSC 1266 Julian John White - First Applicant Romeo Medina Libut - Second Applicant PARTIES: Byron Ward Thompson - First Respondent Jennifer Joy Thompson - Second Respondent Paul Weston atf Bankrupt Estate of Byron Ward Thompson - Third Respondent FILE NUMBER(S): CA 2008/286120 Applicants in person COUNSEL: D Brown for the First and Third Respondents A Bingham for the Second Respondent Applicants in person SOLICITORS: Brown & Partners Solicitor - First and Third Respondents Peninsula Law Solicitors - Second Respondent LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): SC 4817/08 LOWER COURT JUDICIAL OFFICER: Windeyer AJ LOWER COURT DATE OF DECISION: 15/10/09 LOWER COURT MEDIUM NEUTRAL CITATION: [2009] NSWSC 1103 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 2008/286120 McCOLL JA 20 September 2010 JULIAN JOHN WHITE & ANOR v THOMPSON & ORS Judgment ex tempore 1 McCOLL JA: This is an application by the appellants, Mr Julian John White and Mr Romeo Medina Libut, for a stay of order 2 made by Windeyer AJ on 15 October 2009 pending the hearing and determination of the appeal, alternatively, that any enforcement of the said order including any filing of any certificates of determination upon an assessment of the costs the subject of the order or any New South Wales court's associated costs judgment orders be stayed pending the hearing and determination of the appeal. 2 Windeyer AJ's second order was that the plaintiffs (the appellants in this Court) pay the defendants' costs of the appeal: White v Thompson [2009] NSWSC 1103. It is apparent from Mr White's affidavit of 7 July 2010 filed on 14 September 2010 that some of the respondents have moved to have that costs order assessed. Annexed to his affidavit are a number of applications for assessment of party-party costs filed on behalf of, I am informed by Mr Brown, their solicitor, the first and third respondents, seeking an assessment of the costs of the proceedings before Windeyer AJ. The principal amount in dispute for the purpose of the assessment was the whole of the costs recorded in an itemised bill of 19 October 2009 in the amount of $157,128.25. 3 Mr White informed the Court, and I do not understand it to be disputed, that the costs process has been finalised but that a certificate of the costs assessor's determination has not been issued by the Court. Mr Brown was unable to recall precisely the amount of costs which the costs assessor had ordered be paid, but one might assume it is an amount somewhat less than the amount set out in the application for assessment of party-party costs. For present purposes, I will assume the amount is not substantially lower than that amount and may be in the order of $130,000. 4 The respondents have read on the appeal an affidavit sworn by Mr White on 15 March 2010 this year in which he set out his then current assets and liabilities. In short, that affidavit demonstrated a balance of assets over liabilities of $483,000. Mr White gave evidence today updating the information in that affidavit. He said, in substance, that an inheritance shown in that affidavit as one to which he was entitled from his father's estate of $240,000 should in fact be read as an amount of $120,000 by virtue, as I understood it, of his assertion that that amount reflected a joint inheritance of both his wife and himself. 5 Mr White also explained that a share interest in a private company shown in March 2010 as estimated at $300,000 had been the subject of an offer of $183,000 and that figure should be updated to that extent. Mr White said that the balance of his assets over his liabilities if those two matters were taken into account was $240,000. 6 Mr Libut also sought to give evidence to update his statement of assets and liabilities as set out in his affidavit of 12 March 2010, but ultimately his evidence was that that position had not substantially altered. That document demonstrated that the balance of his assets over liabilities was $168,000. 7 Mr White submits that the court would understand that the appeal has some prospects of success because on 19 April 2010 Macfarlan JA made an order referring the matter for legal assistance pursuant to the Court's pro bono scheme. That assistance, I gather, is now to be provided by Mr T Alexis of Senior Counsel and junior counsel in advice to be forthcoming this afternoon. 8 Mr White also submits that while the two affidavits of assets and liabilities which Mr Brown tendered may demonstrate the applicants have more assets than liabilities, those assets are not liquid and could not be made available either readily to secure any stay order or without in some way prejudicing their prospects of pursuing the appeal. 9 Mr Bingham for the second respondent has drawn attention to remarks which fell from White J in considering an application for a stay of Windeyer AJ's orders: White v Thompson [2009] NSWSC 1266. Those remarks as he himself recognised, do not bind the Court: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 (at 692). 10 I have not been taken in any detail to the notice of appeal but I am prepared to assume for present purposes that there may be some prospects of success on appeal, light on which will hopefully be cast by the assistance of senior counsel. 11 The difficulty I have with the application is that the applicants for the stay have not demonstrated a basis for a stay which would be fair to all parties: Alexander (at 694). Even if the assets which were demonstrated in their March affidavits were illiquid and, in Mr White's case, had the updated balance, it would nevertheless be necessary in my view before they were able to secure a stay of the costs order that they make some attempt to preserve the status quo so that the respondents who are entitled to the benefit of those costs orders are not in a worse position in the event that the appeal is unsuccessful. 12 Furthermore, while the applicants submitted that the assets are illiquid, they have not demonstrated that they will be subject to hardship if the respondents are permitted to pursue their costs assessments. 13 In those circumstances, I am of the view that the applicants have not demonstrated a basis for a stay of the costs orders at this stage. I do note that, as Mr Brown properly drew to the Court's attention, the Registrar of the Court of Appeal gave the applicants an opportunity this morning to have this application stood over pending counsel considering their notice of appeal. That would, in my view, have been a wise invitation to accept. 14 In the circumstances, I would refuse to make the orders sought in the notice of motion of 14 September 2010. I dismiss the notice of motion with costs. ********** 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.