Carrier v Bonham

[2000] QCA 375

[2000] QCA 375

COURT OF APPEAL

THOMAS JA

No 7606 of 2000

KEITH DARREL CARRIER                   Respondent/Plaintiff

and

JOHN LLEWELLYN BONHAM             Applicant/First Defendant

BRISBANE

..DATE 13/09/2000

JUDGMENT

HIS HONOUR:  The applicant, John Bonham, is under the care of the Public Trustee and has been so for some years.  Judgment was given against him in an action for damages for personal injuries in the some of $113,061 and costs.  A bill has been prepared in which the costs are said to exceed $70,000.

The appeal raises grounds of substance.  If the judgment is paid there is a serious chance that the appellant, if successful in the appeal, would not recover the moneys paid pursuant to the present judgment. 

Mr Forde, for the respondent, has suggested that the moneys would be disbursed to the legal representatives and to various statutory boards and the balance be paid to his client.  Even on that scenario there would, I think, be considerable difficulty and needless expense associated with repayment assuming that repayment could be effected.  I remain of the impression that there is a serious chance that the appellant, if successful on the appeal, would not recover the moneys paid.  There has been no intermediate suggestion of a small or limited amount being paid to tide over the plaintiff during the delay that the conduct of the appeal will produce. 

Mr Forde also submitted that there is a risk that the applicant/defendant's house may have to be sold in any event, especially having regard to a costs order made in favour of the other defendant against which no appeal has been brought.  That, however, is by no means certain but it would seem to be inevitable that his house would have to be sold if I do not grant a stay of execution of the plaintiff's judgment.

In this particular matter then I think that the balance between the relevant considerations favours the grant of the stay and I shall make an order to that effect pending determination of the appeal.

...

HIS HONOUR:  Order as per paragraphs 1 and 2 of the application and order that the costs of today's proceedings be each party's costs in the appeal.

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