Supreme Court New South Wales Medium Neutral Citation: Ghita Nair-Smith v Perisher Blue Pty Limited [2013] NSWSC 2049 Hearing dates: 20 December 2013 Decision date: 20 December 2013 Before: Rothman J Decision: 1. Plaintiff granted leave to file in Court the affidavit of Kellie Wells dated 19 December 2013; 2. Defendant granted leave to file in Court the notice of motion and affidavit of Geoffrey Robert Brookes dated 19 December 2013; 3. On condition that the defendant (applicant on the motion) pay $400,000.00 of the sum assessed for damages under the primary judgment to the plaintiff, the primary judgment and all costs orders made before today in the proceedings be stayed pending the determination of the appeal against the Primary Judgment or until subsequent order; 4. Costs of this notice of motion be costs in the appeal; 5. Orders may be entered forthwith. Legislation Cited: Civil Liability Act 2002 Trade Practices Act 1974 Cases Cited: Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685 Category: Interlocutory applications Parties: Ghita Nair-Smith (Plaintiff/Respondent) Perisher Blue Pty limited (Defendant/Applicant) Representation: Counsel: G. Nair-Smith (Plaintiff/Respondent) R. Montgomery (Defendant/Applicant) Solicitors: File Number(s): 2006/294818 Publication restriction: None EX TEMPORE Judgment 1HIS HONOUR: The Court has before it an application for a stay of judgment issued by his Honour Beech-Jones J on 27 November 2013. That was the last of a series of judgments, the effect of which was the making of final orders in which the plaintiff was awarded damages in the sum of $1,368,700. 2There are a number of costs orders which award costs in relation to various aspects of the proceedings, some to the plaintiff and some to the defendant. There are, in relation to orders over and above the ones issued on 27 November, other costs orders that likewise issue costs between both the plaintiff and the defendant and some times to one or the other party. 3Essentially, the stay is sought pending an appeal. Notice of intention to appeal has been filed already. Given the time of year it is said on the part of the defendant and/or appellant, or putative appellant, that the appellant will be in a position to file its appeal notice at least in the New Year and certainly before the end of February 2014. I refer to particular 5 of the affidavit of Jeffrey Robert Brooks. 4Prima facie, I take the view that the judgment of his Honour Beech-Jones J is correct. I do not mean that in any way pejoratively of his Honour, on the contrary, it is more than prima facie correct. It is correct until overturned by the Court of Appeal. Nevertheless, the defendant in these proceedings puts before the Court the broad bases upon which the appeal would be brought. 5They relate to the findings of negligence, the inferences his Honour has derived and the conclusions his Honour has made in relation to negligence. Factual appeals are notoriously difficult, even in the Court of Appeal, but I have not paid so much regard to that aspect. On the other hand, Beech-Jones J came to the conclusion that, in calculating the damage, his Honour was not bound by the Civil Liability Act 2002 because the damages were calculated on the basis of issues and liability arising under the Trade Practices Act 1974 and at the time of the incident in question, the Trade Practices Act did not adopt or reflect the calculation of damage that might otherwise be identical with the Common Law Reforms. 6At the very least, that issue seems to me to be arguable and if an issue of leave were necessary which it does not seem to be, one on which the Court of Appeal would be likely to grant leave. I of course am not in a position of predicting the probability of a grant of leave if leave were necessary or, a fortiori, the outcome of the appeal proceedings. I am simply adopting the principles that apply to a stay of proceedings pending appeal and I refer in particular to Alexander v Cambridge Credit Corporation Ltd (Receivers Appointed) (1985) 2 NSWLR 685. 7The costs orders back and forward between the plaintiff and defendant complicate the exercise of the discretion in this matter. The plaintiff, however, is not without means. There is nothing in the material before me that suggests that she is either departing the jurisdiction or incapable of meeting or repaying the damages if they were paid in the interim. The damages, as earlier stated, are significant, and on the statement of assets that are before me, filed by the plaintiff, would require some significant rejigging of her debt facilities and current assets. It would be, at the very least, difficult and certainly inconvenient. 8It seems to me the proper course is either to leave the costs orders as they are or, on one view being very general, stay all of them that issued in the judgment under appeal. They fall, more or less, as between the parties relatively evenly. What I am minded to do is stay the costs orders pending the appeal and stay so much of the damages award as is over $400,000, which at least allows the plaintiff to overcome some of the worst aspects of her losses associated with the injury and at the same time protects the defendant from the difference between Common Law damages and those that arise under the equivalent of Civil Liability Act. 9I so order, (i)Plaintiff granted leave to file in Court the affidavit of Kellie Wells dated 19 December 2013; (ii)Defendant granted leave to file in Court the notice of motion and affidavit of Geoffrey Robert Brookes dated 19 December 2013;3. (iii)On condition that the defendant (applicant on the motion) pay $400,000.00 of the sum assessed for damages under the primary judgment to the plaintiff, the primary judgment and all costs orders made before today in the proceedings be stayed pending the determination of the appeal against the Primary Judgment or until subsequent order; (iv)Costs of this notice of motion be costs in the appeal; (v)Orders may be entered forthwith. ********** 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. Decision last updated: 05 September 2014