New South Wales Court of Appeal CITATION: Jandsen Pty Ltd v Welsh [2009] NSWCA 33 HEARING DATE(S): 9 February 2009 JUDGMENT OF: McColl JA at 1 EX TEMPORE JUDGMENT DATE: 9 February 2009 DECISION: 1. Upon the applicant undertaking to prosecute the application for special leave to appeal with due diligence, the judgment of the Court of Appeal dated 3 December 2008 is stayed pending disposition of the application for special leave to appeal and, if that application be successful, pending disposition by the High Court of the appeal. 2. Costs of the notice of motion be costs in the cause. CATCHWORDS: PROCEDURE – application for stay pending application for special leave CATEGORY: Procedural and other rulings Jandson Pty Ltd v Welsh [2008] NSWCA 317 CASES CITED: Sibuse Pty Ltd v Shaw (No 2) (1988) 13 NSWLR 125 TCN Channel 0 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381 PARTIES: Jandson Pty Ltd - Applicant Judith Carol Welsh -Respondent FILE NUMBER(S): CA 40077 of 2008 D A Priestly for the Applicant COUNSEL: M M Fraser for the Respondent SOLICITORS: Thompson Cooper Lawyers for the Applicant Brydens Compensation Lawyers for the Respondent LOWER COURT JURISDICTION: Court of Appeal LOWER COURT FILE NUMBER(S): CA 40077/08 LOWER COURT JUDICIAL OFFICER: Giles JA, MAcfarlan JA, Hammerschlag J LOWER COURT DATE OF DECISION: 3 December 2008 LOWER COURT MEDIUM NEUTRAL CITATION: [2008] NSWCA 317 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40077/08 McCOLL JA Monday 9 February 2009 JANDSON PTY LTD v JUDITH CAROL WELSH Judgment ex tempore 1 McCOLL JA: The applicant, Jandson Pty Ltd, moves on a notice of motion dated 30 January 2009 for a stay of the judgment and orders of this Court made on 3 December 2008, pending the hearing of an application for special leave to the High Court of Australia. The Court dismissed an appeal from a decision of Ashford DCJ in which her Honour found that the applicant owed a duty of care to the respondent which had been breached in circumstances where the respondent was injured when she fell down two steps onto a timbered area of the floor in a display home owned and occupied by the applicant for commercial purposes: Jandson Pty Ltd v Welsh [2008] NSWCA 317. Her Honour awarded the respondent damages in the sum of $331,938. 2 The issue in the Court of Appeal turned largely on the question whether the applicant ought reasonably to have foreseen that the respondent, or a person in her class exercising reasonable care for his or her own safety, might have been injured by stumbling or falling down the steps: judgment (at [42]). Macfarlan JA (with whom Giles JA agreed) concluded that Ashford DCJ had not erred in her conclusion that the appellant had breached its duty of care. His Honour acknowledged (at [43]) that the case was not an easy one and was perhaps close to the borderline. Nevertheless he decided that the trial judge's conclusions as to duty and breach were correct. After dealing with other issues it is unnecessary to canvass, his Honour proposed the appeal be dismissed. 3 Hammerschlag J took a different view. In his Honour's pithily expressed dissenting judgment (at [68] – [74]) he concluded that the steps down which the appellant fell were not an unusual feature, that the absence of prior injuries - a matter from which the applicant had sought to gain comfort on appeal - was compelling support for the conclusion that the risk the steps posed was insignificant and that it was not reasonably foreseeable that an invitee to the house exercising reasonable care for his or her own safety might well be injured by stumbling over or falling down those steps. His Honour would, therefore, have allowed the appeal. 4 By application filed in the High Court of Australia on 24 December 2008 the applicant moved for special leave to appeal from this Court's decision. The sole ground relied upon is that the Court erred in not holding that the accident occurred because the respondent failed to exercise reasonable care for her own safety in relation to steps which were not unusual and that either this failure was not reasonably foreseeable or else its prospect called for no response by the applicant. 5 The applicant relies in support of its application for a stay on the affidavit of Mr Howard of 30 January 2009. He recites the history of the proceedings, then expresses the applicant's concern that if the judgment monies are paid to the respondent prior to the hearing of the application for special leave and if the application and subsequent appeal are successful his client may be unable to recover the judgment monies. He also adverts to the fact that the evidence at the trial about the respondent's financial circumstances was limited, but did disclose that she was then working part time as a housekeeper and was on a modest income. 6 The respondent opposes the stay application. She relies upon her affidavit of 6 February 2009. That discloses that she is presently unemployed having completed her last employment in October last year. She and her husband are the registered owners of a property at Stanhope Gardens which is subject to a mortgage in the order of $130,000. She estimates the value of the home to be $550,000, leaving a net equity of $420,000. She also owns a motor vehicle and has a superannuation entitlement in the order of $100,000. 7 Mr Priestley, who appeared for the applicant, conceded that this Court ought take into account on the application some assessment of the prospects of a grant of special leave. He accepted this was a case where the issue is one of fact and the question whether special leave might be granted is somewhat finely balanced. He did however point to Hammerschlag J's dissent which, despite its brevity, he submits has much force. While he acknowledged that the respondent's affidavit disclosed she had some assets, he also pointed out that they did not greatly exceed the judgment monies and that on the issue of the balance of convenience the weight shifted in the applicant's favour having regard to the fact that the respondent was protected by interest which would accrue while any stay was in force. 8 Ms Fraser also relied upon the prospect that the question whether the applicant might be granted special leave was somewhat finely balanced. She submitted that the application was less likely or unlikely to be successful. She also noted that the respondent had offered to accede to a stay as to 50 per cent of the judgment. 9 The issue of the prospects of success on the leave application is, I accept, finely balanced. The question whether a stay ought be granted pending an application for special leave must turn on whether in all the circumstances a stay is appropriate. The question of fact which the application for special leave discloses is one which to my mind, despite Hammerschlag J's dissent, does not appear readily would attract a grant of special leave. I say that with the timidity with which a Court of Appeal judge seeks to make any prediction about the outcome of a special leave application. 10 I bear in mind, when considering the application for a stay, that although the respondent has adduced evidence as to her assets and has also offered to consent to a stay as to 50 per cent of the proceeds, there is some risk in my view that if the applicant were granted special leave and was successful on the ultimate appeal it would be highly undesirable if it had to resort to restitutionary proceedings to recover the judgment. I bear in mind in this respect that in this Court stays of execution of judgment are regularly granted pending an appeal if the judgment is at risk if paid over: TCN Channel 9 Pty Ltd v Antoniadis (No 2) (1999) 48 NSWLR 381. Here I discern that there is some risk in that respect and I think it is appropriate, therefore, that there be a grant of a stay. Such a grant would be conditional in accordance with Sibuse Pty Limited v Shaw (No 2) (1988) 13 NSWLR 125 upon the applicant undertaking to prosecute the application for special leave with due diligence. 11 HER HONOUR: Do you give that undertaking, Mr Priestley? 12 PRIESTLEY: I do, your Honour. 13 I order: (1) Upon the applicant undertaking to prosecute the application for special leave to appeal with due diligence, the judgment of the Court of Appeal dated 3 December 2008 is stayed pending disposition of the application for special leave to appeal and, if that application be successful, pending disposition by the High Court of the appeal. (2) Costs of the notice of motion be costs in the cause. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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