Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Steve Marinos v Jane Mimigeannis [2016] NSWCA 241 Hearing dates: 29 August 2016 Decision date: 02 September 2016 Before: Sackville AJA Decision: 1. Dismiss the appellant's notice of motion filed on 14 July 2016. 2. The appellant pay the respondent's costs of the motion. Catchwords: PRACTICE AND PROCEDURE – application to stay orders of the District Court – no basis for a stay. Legislation Cited: Limitation Act 1969 NSW, s 50C(1), s 50D Uniform Procedure Rules 2005 (NSW) r 51.44(1) Cases Cited: Alexander v Cambridge Credit Corporation Ltd (Receivers appointed) (1985) 2 NSWLR 685 Mimigeannis v Marinos (unrep, 16 May 2016, District Court) Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd [2014] NSWCA 231 State of New South Wales v Gillett [2012] NSWCA 83 Trad v Harbour Radio Pty Ltd [2010] NSWCA 41 Category: Principal judgment Parties: Steve Marinos (Appellant) Jane Mimigeannis (Respondent) Representation: Counsel: Appellant: Mr T McKenzie Respondent: Mr D Stanton Solicitors: Appellant: Photios Vouroudis & Co Respondent: Sanford Legal File Number(s): 2016/166943-1 Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Civil Date of Decision: 16 May 2016 Before: Bozic SC DCJ File Number(s): 2014/94516 [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.] Judgment 1. SACKVILLE AJA: By a notice of motion filed on 14 July 2016 the appellant seeks a stay of orders made by Bozic DCJ on 16 May 2016 pending determination of an appeal from his Honour's decision. The application is made pursuant to Uniform Procedure Rules 2005 (NSW) r 51.44(1). 2. The respondent sued the appellant for injuries sustained in an assault committed by the appellant on 1 May 2010. At that time the respondent was living with the appellant in his apartment. There was no dispute at the trial that the respondent sustained significant injuries as a consequence of the assault. The primary Judge (as I shall describe his Honour) entered judgment for the respondent against the appellant in the sum of $338,122. [1] 3. The respondent did not commence proceedings against the appellant until 28 March 2015, more than four years and ten months after the assault. However, the primary Judge rejected the appellant's defence founded on s 50C(1) of the Limitation Act 1969 (NSW) (Limitation Act), the effect of which is that a plaintiff must commence an action in assault within three years from "the date on which the cause of action is discoverable by the plaintiff". 4. His Honour concluded that the cause of action was not discoverable by the respondent until 24 October 2014. His Honour reached this conclusion on the basis of the following findings: [2] "(i) As at 1 May 2010 the plaintiff knew that she had been assaulted; (ii) She knew that the assailant was the defendant; and (iii) That she had suffered injury. (iv) Within weeks of the assault she knew that she would incur treatment expenses for her injuries. (v) Two and a half weeks after the assault the plaintiff sought legal advice. (vi) The solicitor from whom she sought advice told the plaintiff that a claim would be brought on her behalf for victims compensation. (vii) Having sought legal advice the plaintiff understood that the only compensation she could receive for the assault was by way of victims compensation. (viii) The plaintiff was not informed of her right to bring an action on a cause of action against the defendant until she spoke to a solicitor from another firm on 24 October 2014. (ix) The statement of claim was filed in the District Court on 28 March 2015." 1. The primary Judge assessed damages for injuries sustained by the respondent in consequence of the assault at $338,122, made up as follows: [3] "(i) General damages $ 150,000 (ii) Interest on general damages $ 9,000 (iii) Past out of pocket expenses $ 6,224 (iv) Future out of pocket expenses (dental) $ 139,098 (v) Future out of pocket expenses (psych) $ 23,800 (vi) Aggravated damages $ 10,000 (vii) Exemplary damages Nil Total $ 338,122" 1. The appellant's notice of appeal contains the following grounds: "1. The trial judge erred in finding that the plaintiff was not aware that the injury was caused by the fault of the defendant until October 2014, and consequently was not 'discoverable' until then pursuant to sec.50D(1)(b) Limitation Act. 2. The trial judge erred in finding that the plaintiff was not aware of the fact that the injury was sufficiently serious to justify bringing an action until October 2014, in accordance with sec.50D(1)(c). 3. The trial judge erred in failing to find that the plaintiff had the required knowledge, as at 20 May 2010, so as to allow the running of time in accordance with both sec.50D(1)(b) and sec.50D(1)(c) Limitation Act. 4. The trial judge erred in placing significance on the advice of the plaintiff's solicitors as to causes of action in circumstance where time had already started to run prior to the receipt of that advice. 5. His honour erred in awarding $150,000 for general damages in the circumstance. 6. His honour erred in awarding $139,098 for future out of pocket expenses for dental treatment." 1. Mr McKenzie, who appeared for the appellant, submitted that a stay should be granted for four reasons: 1. The appellant has an arguable case that the primary Judge misconstrued s 50D of the Limitation Act. In particular, his Honour should have found that the respondent, even though she had not been advised of her entitlement to rely on a cause of action in assault until October 2014, should have been aware shortly after the assault that such a cause of action was available to her. 2. The appellant also has an arguable case that the primary Judge's assessment of general damages and damages for future dental expenses was excessive. 3. The appellant's solicitor gave affidavit evidence that the appellant is a self-employed butcher who requires funds to keep trading and that the appellant "does not have significant financial resources". 4. The appellant was prepared to undertake to the Court that he would not sell or otherwise encumber a property at Casula of which he is the registered proprietor. The value of the property, which is apparently presently unencumbered, is said to be $500,000. 1. The relevant principles on an application to stay orders pending an appeal were stated by Gleeson JA in Mushroom Composters Pty Ltd v IS & DE Robertson Pty Ltd: [4] "6. The principles to be applied when exercising the Court's power to grant a stay pending an appeal are well known: see Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-695, and Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (Kalifair) [2002] NSWCA 383; 55 NSWLR 737 at 741 [17]-[20]. 7. Prima facie the successful party is entitled to the benefit of a judgment, but a stay may be granted where an applicant demonstrates an appropriate case to warrant the exercise of discretion in its favour. The mere filing of the appeal is insufficient, of itself, to demonstrate such a case. Usually it is demonstrated by showing that there are arguable grounds of appeal and that there is a significant risk that if money is paid it will be unable to be recovered if the appeal succeeds or by demonstrating that unless a stay is granted the appeal will be rendered nugatory: TCN Channel 9 Pty Limited v Antoniadis (No 2) (1999) 48 NSWLR 381 at 385 [15]. It is for the applicant to demonstrate a proper basis for a stay that will be fair as between the respective interests of the parties: see Alexander v Cambridge Credit Corporation Ltd at 694; Adeels Palace Pty Ltd v Moubarak [2009] NSWCA 130 at [2]. 8. A successful party is entitled to be protected, as far as practicable, from the risk that if the appeal fails assets which earlier were available to satisfy the judgment will no longer be available for that purpose. It is for this reason that an appellant may be required to provide appropriate security as the price of a stay which may make the judgment creditor a secured creditor. Nonetheless a requirement for security is only intended to protect the status quo, that is the existing value of the judgment, and not to improve the position of the judgment creditor by increasing that value: Kalifair at [28]." 1. To these observations, I would add that the Court considering a stay application is entitled to take into account its preliminary assessment of the strength of the appellant's case. This consideration is protective of the position of a judgment creditor when it may be plain that an appeal has been lodged without any real prospect of success. [5] 2. I accept that caution must be exercised before characterising an appellant's case on appeal as weak. However, the appellant's case on the Limitation Act runs into the difficulty that it appears to be inconsistent with the decision of a five member Court of Appeal on the meaning of s 50D(1)(b) of the Limitation Act. In State of New South Wales v Gillett, [6] it was held that a cause of action in negligence was not discoverable for the purposes of s 50D of the Limitation Act unless and until the plaintiff (who had sought advice) received legal advice that the defendant was legally responsible for the plaintiff's inquiry. 3. Given the findings of fact made by the primary Judge are apparently not challenged, it is not clear to me how the appellant can distinguish the decision in Gillett. 4. There may be more substance to the appellant's argument that the award of general damages was excessive. However, in the absence of developed submissions on the point no more can be said than that there is an arguable case for reducing the damages by some amount. On the material before me, I am unable to make any assessment of whether the ground of appeal relating to the future dental expenses has any substance. At this stage, the ground appears to be no more than an assertion that the damages awarded under this head were excessive. 5. The evidence as to the appellant's financial position, as Mr McKenzie acknowledged, is vague and incomplete. The appellant himself has chosen not to put on affidavit evidence. The solicitor's affidavit on information and belief, although asserting that the appellant will face severe financial hardship if no stay is granted, does not descend into detail as to the nature of the hardship or the extent of the appellant's assets and resources. The affidavit does not state, for example, that the Casula property is the appellant's only significant asset, and does not address whether other assets are held by the appellant. Nor does the solicitor's affidavit explain how and in what respects the refusal of a stay would adversely affect the appellant's business, as the affidavit claims. 6. I would have been sympathetic to a stay of enforcement of at least a portion of the judgment sum had there been evidence that the respondent may be unable to repay the whole of the judgment sum should the appeal be upheld. There was, however, no evidence to this effect and, despite the issue being highlighted in argument, Mr McKenzie did not submit that there was any risk that the appellant would be disadvantaged if the appeal was successful. 7. I do not think that the undertaking offered by the appellant tips the balance in favour of ordering a stay of the orders made by the primary Judge. The evidence as to the value of the appellant's property consists of no more than an assertion made by his solicitors on instructions in the course of correspondence. It is not clear on the evidence whether the appellant's equity in the property will be sufficient to cover the judgment sum, interest and costs. The proffered undertaking would not prevent the appellant disposing of other assets that might otherwise provide a readier means of enforcing the judgment than attempting to levy execution on land. The undertaking offered by the appellant does not afford the respondent with the protection that would be provided, for example, by a bank guarantee or moneys paid into court. 8. In the state of the evidence I have described and taking into account the apparent weakness of the appellant's case, the motion for a stay of the primary Judge's orders should be dismissed. There is no reason why costs should not follow the event. ********** Endnotes 1. Mimigeannis v Marinos (unrep, 16 May 2016, District Court) (Primary Judgment). 2. Primary Judgment at [51]. 3. Primary Judgment at [224]. 4. [2014] NSWCA 231 at [6]-[8]. 5. Alexander v Cambridge Credit Corporation Ltd (Receivers appointed) (1985) 2 NSWLR 685 at 695 per curiam; Trad v Harbour Radio Pty Ltd [2010] NSWCA 41 at [46]-[48]. 6. [2012] NSWCA 83 at [109]-[110] (Beazley P, McColl, Campbell, Young and Whealy JJA agreeing). 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: 02 September 2016