Alananzeh v Zgool Form Pty Ltd (No 2)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Alananzeh v Zgool Form Pty Ltd (No 2)

Citation: 

[2024] ACTSC 258

Hearing Date: 

2 August, 12 August 2024

Decision Date: 

19 August 2024

Before:

McWilliam J

Decision: 

(1)    The judgment given on 26 June 2024 is stayed pending determination of the plaintiff’s appeal and the second defendant’s cross-appeal, on the condition that the second defendant pay to the plaintiff, within 28 days from the date this order comes into effect, the sum of $45,000.

(2)    Costs of the application are costs in the cause.

Catchwords: 

PRACTICE AND PROCEDURE – Application for stay of order pending appeal and cross-appeal – Judgment in favour of plaintiff in personal injury proceeding – whether impecunious plaintiff – whether serious issues for determination raised on cross-appeal – whether real risk that second defendant may suffer prejudice or damage if the stay is not granted – whether balance of convenience favours maintenance of status quo pending appeal proceeding – where competing rights of the parties requires balance of hardship produced by stay on plaintiff – conditional stay granted

Legislation Cited: 

Civil Law (Wrongs) Act 2002 (ACT) s 47

Court Procedures Rules (2006) (ACT) r 5301

Cases Cited: 

Alananzeh v Zgool Form Pty Ltd [2024] ACTSC 16

Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685

Dreamtime Supply Company Pty Ltd v Steadfast ICT Security [2021] ACTCA 38

Hendricks v El Dik (No 5) [2016] ACTSC 302

Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd [2024] NSWCA 128

Woolworths Ltd v Strong (No 2) (2011) 80 NSWLR 445

Parties: 

Ahmad Alananzeh ( Plaintiff)

Zgool Form Pty Ltd (First Defendant)

Xmplar Formwork Pty Ltd (Second Defendant)

Workers Compensation Default Insurance Fund Manager (Third Defendant)

Representation: 

Counsel

D Shillington ( Plaintiff)

N Sinnathurai (Second Defendant)

Solicitors

Law Partners Personal Injury Lawyers ( Plaintiff)

No appearance (First Defendant)

Wotton & Kearney (Second Defendant)

Moray & Agnew (Third Defendant)

File Number:

SC 90 of 2022

McWILLIAM J:          

1․On 26 June 2024, I delivered judgment in this proceeding in favour of the plaintiff in the sum of $243,900 and ordered the first and second defendants to pay the plaintiff’s costs, with the third defendant to pay its own costs: see Alananzeh v Zgool Form Pty Ltd [2024] ACTSC 16 (primary judgment). 

2․The first defendant was the plaintiff’s employer and did not participate in the hearing.  The second defendant was a sub-contractor at the relevant construction site where the injury occurred.  The third defendant was the default insurer who was liable to pay any judgment against the first defendant (who did not hold an insurance policy that responded in the Territory) save as to where another defendant was also found liable, which is what occurred when the Court entered judgment against both the first and second defendants.

3․The plaintiff has appealed the judgment.  The second defendant has cross-appealed and by application in proceeding filed 23 July 2024, sought a stay of the judgment.  The appeal proceeding is not…