Colefax v Piggins

[2001] QCA 427

[2001] QCA 427

COURT OF APPEAL

WILLIAMS JA

Appeal No 6877 of 2001

REGINALD GARRY COLEFAX               Respondent (Plaintiff)

and

STEPHEN JOHN PIGGINS      First Appellant (First Defendant)

and

MMI GENERAL INSURANCE LIMITED
  Second Appellant (Second Defendant)

BRISBANE

..DATE 05/10/2001

JUDGMENT

HIS HONOUR:  This is an application to stay a District Court judgment pending the hearing of an appeal.  On 4 July 2001 it was ordered that the present applicants, the defendants in the action, pay the plaintiff, the present respondent, the sum of $158,042 by way of damages for personal injuries sustained in a motor vehicle incident.

Rule 761 of the Uniform Civil Procedure Rules empowers a Judge of this Court to grant a stay. In Croney v. Nand (1999) 2 Queensland Reports 343, it was held by this Court that the appropriate test was that the applicant bore the onus of showing the case was appropriate for a stay to be granted.

The cases under the earlier rules of the Supreme Court required special circumstances or something of that kind to be established and that is also a requirement in a number of other jurisdictions.  In consequence a number of reported cases are now not relevant to the consideration whether or not a stay should be granted.

The applicant puts forward its case on a number of bases.  Firstly it said that there is a fear that the award of damages would be dissipated if fully paid before the hearing of the appeal, and, if the appeal was successful to any extent, then there would be little or no chance of recovery.  It was also said that, in the circumstances, there are strong prospects of success on the hearing of the appeal.

I should say that the applicant has always conceded that some amount should be paid and prior to bringing this application an offer was made to the solicitors for the respondent which involved a number of alternative propositions, including payment of part of the amount immediately or payment of the whole of the amount provided it was held in trust until the hearing of the appeal.  Those offers were rejected, hence the contested hearing today.

The respondent has not worked for any significant period of time since about 1984 and in about that year he was declared bankrupt on his own petition.  Apparently his wife left him in 1981 and he had the responsibility of looking after three relatively young children.  He says that the debt on which he declared himself bankrupt was of the order of about $5,000 to $6,000.

The contention of the appellant is that in those circumstances the respondent has in the past demonstrated an inability to manage his affairs and if given the full amount of the judgment it may well be dissipated before the hearing of the appeal. 

The respondent says in his affidavit that he would probably bank some of the moneys or may use them to purchase a house.  That in itself raises a concern because if the whole of the judgment was tied up in a house and the applicant was at all successful there may be difficulty in getting repayment within a reasonable time.

Having regard to the judgment appealed from it does seem to me it is not surprising that there is an appeal, particularly given the findings made with respect to the respondent's injury to the right wrist.  That has to be balanced against the basic premise that the respondent is entitled to the fruits of the judgment he currently has.

I am of the view that it is appropriate in the circumstances that I have outlined to stay the judgment in part and I am of the view that the applicant should pay forthwith to the respondent $100,000.  Payment of the balance should be stayed.  The balance would, of course, continue to attract interest which I understand would be at the current rate of 9.5 per cent.

...

HIS HONOUR:  The order will require payment of $100,000 immediately, a stay on the balance, and I would also make that order on condition that the appellants prosecute the appeal promptly. 

...

HIS HONOUR:  The costs of and incidental to the notice of motion are to be costs of the appeal.

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