Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Transpacific Cleanaway Pty Ltd v Cairns [2012] NSWCA 294
• Hearing dates: 3 September 2012
• Decision date: 03 September 2012
• Before: Macfarlan JA

Decision

(1) I order that the judgment of McLoughlin DCJ in this matter dated 26 April 2012 be stayed pending determination of this appeal or until further order, whichever occurs first.

(2) I order that the costs of the application for a stay be costs in the appeal.

[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: APPEAL - application for stay of judgment pending appeal - risk that respondent will be unable to repay judgment sum without difficulty or delay if appeal succeeds - need for money pending appeal not identified by respondent - difficulty of enforcement of judgment for restitution of judgment sum
• Cases Cited: Woolworths Ltd v Strong (No 2) [2011] NSWCA 72
• Category: Procedural and other rulings
• Parties: Transpacific Cleanaway Pty Ltd (Appellant); Thomas Cairns (Respondent)
• Representation: Counsel: D Villa (Appellant); M M Fraser (Respondent); Solicitors: McCabes Lawyers Pty Ltd (Appellant); Castagnet Lawyers (Respondent)
• File Number(s): CA 2012/164391

Decision under appeal

• Citation: Thomas Cairns v Transpacific Cleanaway Pty Limited
• Date of Decision: 2012-04-26 00:00:00
• Before: McLoughlin SC DCJ
• File Number(s): DC 2010/383956

Judgment

1 HIS HONOUR: This is an application by the appellant for the stay of a judgment dated 26 April 2012 for $605,716 (now amended by agreement to $606,501) awarded in favour of the respondent by McLoughlin DCJ. The proceedings related to an injury suffered by the respondent in the use of a footpath on which the appellant had placed a hose. As Campbell JA pointed out in Woolworths Ltd v Strong (No 2) [2011] NSWCA 72 at [68], this Court usually grants a stay of a first instance judgment pending appeal where there is a risk that the respondent to the appeal "will be unable to repay the money without difficulty or delay if the appeal were to succeed."

2 In my view such a risk exists in the present case. The respondent has adduced evidence that he is the co-owner of a house at Bondi asserted by a property service organisation to be valued at $1,555,000. However, as the estimate is not one of a registered valuer, it carries little, if any, weight. The respondent says that the house is subject to a mortgage upon which $706,000 is outstanding. The house is the home of the respondent, his co-owner who is his partner, and their child. There is no evidence as to the relative shares of the respondent and his partner in the house.

3 The only other evidence concerning the financial position of the respondent is that he earned a gross salary of $68,170 as a registered nurse in the last financial year. Moreover, the respondent has not indicated either in correspondence or in evidence that he has any particular need for the judgment moneys before disposition of the appeal. Indeed, he has not indicated in any way what would be done with those moneys in that period.

4 If the appellant were successful on the appeal it would be entitled to restitution at the not insignificant rate of interest which applies to unsatisfied judgments. As Campbell JA also pointed out in Woolworths v Strong (No 2) at [72], it would be difficult for a plaintiff who has paid his judgment to earn interest at an equivalent rate.

5 The respondent submitted that the appeal was not a strong one and that damages were not wholly challenged, indeed, that there was a substantial part of the damages that was either agreed or not challenged. However, whilst those matters are relevant I do not think I could conclude that the appeal on liability is hopeless. As a result there is, as I see it, a prospect that the respondent might have to repay any part of the judgment paid to him. Enforcement of the judgment for restitution against the respondent would not be easy bearing in mind that his only identified asset is his home and that he has only a co-ownership interest in it. In my view there is a risk of the nature to which I have referred and in the absence of any compelling reason to the contrary being advanced by the respondent the stay should be granted.

6 I order that the judgment of McLoughlin DCJ in this matter dated 26 April 2012 be stayed pending determination of this appeal or until further order, whichever occurs first.

7 I order that the costs of the application for a stay be costs in the appeal.

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Decision last updated: 17 September 2012