Chioatto v Sandona
[2004] NSWSC 629
•6 July 2004
CITATION: CHIOATTO v SANDONA [2004] NSWSC 629 HEARING DATE(S): 06/07/04 JUDGMENT DATE:
6 July 2004JUDGMENT OF: Levine J DECISION: 1. Pursuant to s 69(5) of the Local Courts (Civil Claims) Act 1970 the stay of the judgment of orders made on 2 June 2004 by the Local Court pending the determination of the appeal be dissolved only to the extent of the sum of $10,000, being the principal sum referred to in par 3 of the statement under SCR Pt 51A and in these reasons.; 2. The respondent is pay the applicant's costs of the motion. CATCHWORDS: Local Court (Civil Claims) Act 1970 s67(5) - stay pending appeal to Supreme Court - stay dissolved to extent of sum not in issue on appeal LEGISLATION CITED: Local Court (Civil Claims) Act 1970 s69(5) PARTIES :
SANTE CHIOATTO
(Plaintiff)v
ONORINA SANDONA
AS THE ADMINISTRATRIX OF THE ESTATE OF THE LATE ADRIANO SANDONA
(Defendant)
FILE NUMBER(S): SC 11824/04 COUNSEL: R Brender
D Ash
(Applicant)
(Respondent)SOLICITORS: Bielby Poulden Costello
Agostini Jarrett Pty Ltd
(Applicant)
(Respondent)
LOWER COURTJURISDICTION: Local Court LOWER COURT FILE NUMBER(S): 15394/2001 LOWER COURT
JUDICIAL OFFICER :Magistrate B Schurr
- [2004] NSWSC 629
Ex tempore: revised
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
JUSTICE DAVID LEVINE
TUESDAY 6 July 2004
11824 OF 2004
SANTE CHIOATTO
(Plaintiff)
ONORINA SANDONAv
AS THE ADMINISTRATRIX OF THE ESTATE OF THE LATE ADRIANO SANDONA
(Defendant)
1 By notice of motion filed on 30 June 2004 the applicant, the defendant in the substantive appeal, seeks an order that the stay operating pursuant to s 69(5) of the Local Court (Civil Claims) Act 1970 be lifted in so far as it relates to the principal sum of $10,000.
2 To some extent the background of the current proceedings can be found in a judgment I delivered between the same parties on 8 November 2001 ([2001] NSWSC 1002). Subsequent to that judgment there have been further proceedings in the Local Court.
3 On 2 June 2004, it can be understood for present purposes, the learned Magistrate made findings:
- (a) That Mr Sandona lent Mr Chioatto $3000 on 8 May 1976, $3000 on 7 July 1976, $3000 on 7 September 1976, and $2000 on or about 1 July 1977.
- (b) That Mr Chioatto repaid $1000 in 1986.
- (c) That no further repayments were made by Mr Chioatto.
- (d) That on 14 November 2001 notice was given for the repayment of the loan and interest and the money became due three weeks later.
4 The Magistrate’s orders were:
- 1. That Mr Chioatto pay to Mr Sandona’s estate the balance of the principle, namely $10,000, and accumulated interest of 12 per cent dating from the date of each loan agreement.
- 2. Mr Chioatto pay the estate’s costs .
5 The Magistrate’s formal orders were:
- 1. Verdict and judgment in favour of the plaintiff for $40,000 plus $144 issue and service fee.
I interpolate that that verdict and judgment in that sum is consequential upon the waiver of any sum in excess of the relevant jurisdiction limit.
- 2. Order awarding interest on the judgment sum as to that part of it representing the principal sum of $10,000 in the sum of $2245.21 up to the date of judgment.
- 3. Any further interest may be payable on the judgment debt only to the amount of $10,000.
- 4. An order for costs.
6 The defendant in the Local Court proceedings has appealed to this court and is the respondent to the present motion. The source of the above extracted findings, orders and formal orders is the respondent's statement filed in the appeal pursuant to SCR Pt 51A r 2A(6) and (5).
7 It is to be observed that in paragraph 3 of that statement the appellant/plaintiff/respondent states, “Mr Chioatto does not dispute in this appeal that he is liable for the principal.”
8 Section 69(5) of the Local Courts (Civil Claims) Act 1970 states:
- “69(5) Subject to any order of the Supreme Court to the contrary a judgment or order against which the appeal is made is stayed pending the determination of the appeal.”
9 That is the statutory source, as it were, for the applicant’s motion.
10 The context for the relief is made up, first by reference to what I have cited from para 3 of the appeal statement, namely that the appellant does not dispute liability for the principal sum.
11 Secondly, the context for the application is that the appeal in this court will be concerned only with the question of interest awarded by the learned Magistrate.
12 The third matter of context is that no reasonable outcome of the appeal to this court, adverse to the present applicant, could affect in any real sense the undisputed sum.
13 Fourthly, the applicant has undertaken to treat that $10,000, if excluded by my order from the presently existing stay, as the principal sum and only as that principal sum, for which liability is not in issue. In other words, the applicant will not treat it as some sort of down payment or part payment of any ultimate sum to which the applicant may become entitled by reason of the outcome of the appeal to this court.
14 For the respondent it has been submitted that s 69(5) must be taken as reflecting a policy that recognises that appeals to this court from the Local Court under the relevant regime are concerned with comparatively small amounts, that the judgment creditor is protected by the running of interest and that appeals to this court, everything being relative of course, are disposed of more quickly.
15 Here, the appeal has promptly been lodged and is to be called over on 4 August 2004, and as I understand it there has been some delay in obtaining some transcript from the Local Court. In other words, it is not as if a lengthy period measured in many months or years is involved.
16 The respondent is concerned at the possibility of some kind of partial execution by the applicant in relation to the $10,000 if an order is made, and irrespective of the outcome of the appeal, which as I have mentioned could be determined in a comparatively short period. I should thus exercise my discretion and not make the order sought.
17 Whether technically there can be a partial execution in relation to an undisputed and discrete component of a judgment was not explored to completion in the present application. Whether there will be any attempt at execution if the order sought is made, so far as I am concerned, can only be a matter of speculation. Questions for example as to the perfection of orders may arise, see for example Pt 26 r 6 of the Local Court (Civil Claims) Rules.
18 The policy considerations referred to of course make sense; the more so in a context where everything is in issue on an appeal. When however a not unsubstantial and discrete component of the judgment sum is not in issue on the appeal, the policy considerations should not stand in the way of the judgment creditor, to the extent of that discrete sum, being entitled to the fruit of the Local Court outcome.
19 Accordingly I am persuaded to make an order as follows:
2. The respondent is pay the applicant’s costs of the motion.
1. Pursuant to s 69(5) of the Local Courts (Civil Claims) Act 1970 the stay of the judgment of orders made on 2 June 2004 by the Local Court pending the determination of the appeal be dissolved only to the extent of the sum of $10,000, being the principal sum referred to in par 3 of the statement under SCR Pt 51A and in these reasons.
Last Modified: 07/16/2004