Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Sutherland Shire Council v Major [2014] NSWCA 403 Hearing dates: 24 November 2014 Decision date: 24 November 2014 Before: Sackville AJA Decision: 1. Set aside the order of Cogswell DCJ of 29 October 2014. 2. Grant the appellant a stay of the judgment of Cogswell DCJ 9 July 2014 on condition that the appellant pay to the respondent the sum of $70,000 within 28 days. 3. The costs of the application be the costs in the cause. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: PRACTICE AND PROCEDURE - application for a conditional stay of judgment pending appeal - whether evidence supported grant of stay on condition that part of judgment sum be paid to respondent Legislation Cited: Civil Procedure Act 2005 (NSW) s 67 Uniform Civil Procedure Rules 2005 r 51.44 Cases Cited: Major v Sutherland Shire Council (District Court (NSW), Cogswell SC DCJ, 9 July 2014, unrep) Major v Sutherland Shire Council (District Court (NSW), Cogswell SC DCJ, 29 October 2014, unrep) Category: Interlocutory applications Parties: Sutherland Shire Council (Appellant) Bradley Major (Respondent) Representation: Counsel: RS Sheldon SC (Appellant) L Goodchild (Respondent) Solicitors: Mills Oakley Lawyers (Appellant) Brydens Compensation Lawyers (Respondent) File Number(s): 2014/230413 Publication restriction: None Decision under appeal Jurisdiction: 9101 Date of Decision: 2014-10-29 00:00:00 Before: Cogswell SC DCJ File Number(s): 2013/110928 Judgment 1SACKVILLE AJA: The appellant filed a notice of motion on 5 November 2014 seeking an order pursuant to s 67 of the Civil Procedure Act 2005 (NSW) (CP Act) that the judgment of Cogswell SC DCJ given on 9 July 2014 (Major v Sutherland Shire Council (District Court (NSW), Cogswell SC DCJ, 9 July 2014, unrep)) (Principal Judgment) be stayed until the determination of the appellant's notice of appeal, on condition that the appellant pays the respondent $50,000, less statutory deductions, within 28 days. In the Principal Judgment, the primary Judge entered a verdict and judgment for the respondent against the appellant in the sum of $278,392. The verdict represented damages for personal injuries sustained by the respondent by reason of the appellant's negligence. 2The appellant's motion in effect seeks to vary an order made by the primary Judge on 29 October 2014 (Major v Sutherland Shire Council (District Court (NSW), Cogswell SC DCJ, 29 October 2014, unrep)) (Stay Judgment). His Honour stayed the orders made in the Principal Judgment beyond payment by the appellant to the respondent of $105,000 within 28 days. 3Section 67 of the CP Act provides that, subject to rules of court, the Court may at any time and from time to time, by order, stay any proceedings before it. The Uniform Civil Procedure Rules 2005 (UCPR) r 51.44 applies in the appellant jurisdiction of the Court. Rule 51.44(1) states that, subject to the filing of a relevant originating process, the Court may order that the decision below or the proceedings under the decision be stayed. 4At the conclusion of argument I made the following orders: 1. Set aside the order of Cogswell DCJ of 29 October 2014. 2. Grant the appellant a stay of the judgment of Cogswell DCJ 9 July 2014 on condition that the appellant pay to the respondent the sum of $70,000 within 28 days. 3. The costs of the application be the costs in the cause. I indicated that I would give my brief reasons for making these orders later. These are the reasons. 5The appellant has appealed against the Principal Judgment. However, the notice of appeal does not challenge his Honour's findings on liability and the appeal is limited to the question of damages. 6Mr Sheldon SC, who appeared for the appellant, submitted that the appellant's motion is to be dealt with by this Court in its original jurisdiction, pursuant to s 67 of the CP Act and UCPR r 51.44. On this basis, he submitted that the motion should be dealt with afresh, without the appellant having to demonstrate error on the part of the primary Judge. Ms Goodchild, who appeared for the respondent, did not dispute that the matter should be approached in this way. 7The evidence before me, which includes material not before the primary Judge, establishes that there is a risk that the respondent will not be able to repay anything other than a small proportion of moneys that are paid to him in advance of the appeal being finalised, should the appeal be successful. However, a schedule handed up by Mr Sheldon indicates that the best result that the appellant can hope to achieve on the appeal is a reduction in the damages award from $278,392 to about $46,000. It follows that the dispute is really about whether a condition should be imposed upon a stay of the Principal Judgment requiring the appellant to pay about $50,000 allowing for post-judgment interest, as the appellant contends, or $105,000, as the respondent contends, or some figure between the two. 8The evidence indicates that the respondent's taxable income for the 2013 taxation year was in the order of $66,000. An affidavit of the respondent, read by Ms Goodchild, suggests that he has assets, independently of the plumbing business that he conducts, worth about $164,000, including "savings" of $15,000. However the valuation is the respondent's own and is unsupported by objective evidence. Without casting doubt on the respondent's credibility, his evidence has to be substantially discounted because of the lack of detail supporting his valuation of personal assets such as a boat, fishing equipment and motor vehicles. Nonetheless, on the evidence, I think that there is only a minimal risk that, if the appellant is successful on the appeal, the respondent would be unable to repay an amount of up to about $20,000. Since there is effectively no dispute that the respondent will retain at least about $50,000 of the judgment sum even if the appeal succeeds, I consider that justice would be served by granting the stay on condition that the appellant pay the respondent the sum of $70,000 within 28 days. 9If it be necessary to explain why I do not think the primary Judge's figure of $105,000 is appropriate, my reason is that his Honour does not appear to have given close attention to the respondent's capacity to repay any of the judgment sum should the appeal be successful. His Honour found that the appellant had discharged its onus of demonstrating that there is some risk that it might not recover any amount paid to the respondent (at [3]). Having made that finding, his Honour did not explain why the figure of $105,000 did not put the appellant at some risk that it would not be able to recover moneys paid to the respondent, should the appeal succeed. 10It is for these reasons that I considered that the orders set out earlier in this judgment should be made. ********** Amendments 28 November 2014 - Pursuant to the Slip Rule the word "of" has been inserted before "9 July 2014". Amended paragraphs: Coversheet Decision 2. and [4(2)] 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: 27 November 2014