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Elphick v MMI General Insurance Ltd

Elphick v MMI General Insurance Ltd

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SUPREME COURT OF QUEENSLAND

CITATION:

Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347

PARTIES:

JASON DREW ELPHICK
(plaintiff/respondent)
v
MMI GENERAL INSURANCE LIMITED
ACN 000 122 850
(first defendant/applicant)
GRAHAM JOSEPH ELLIOT
(second defendant)

FILE NO/S:

Appeal No 7316 of 2002
SC No 22 of 1999

DIVISION:

Court of Appeal

PROCEEDING:

Application for Stay of Execution

ORIGINATING COURT:

Supreme Court at Rockhampton

DELIVERED ON:

6 September 2002

DELIVERED AT:

Brisbane

HEARING DATE:

4 September 2002

JUDGE:

Jerrard JA

ORDERS:

1.   That further enforcement of the orders made by His Honour Justice Dutney on 27 June 2002 be stayed conditioned upon:
(a) the applicant MMI General Insurance Limited making application within seven days of the date hereof for an order setting off the amount of $40,000.00 of the damages it was ordered on 27 June 2002 to pay to the respondent and the respondent’s costs it was ordered on 9 July 2002 to pay against its costs the respondent was ordered on 9 July 2002 to pay; and
(b) further conditioned upon the applicant prosecuting that application without delay.

2.   The stay ordered herein be in force until judgment on the application described herein.

3.   That the applicant pay the respondent’s costs of and incidental to this application such costs to be assessed on the standard basis.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL PRACTICE AND PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where applicant appeals against judgment of Supreme Court which refused application for stay of execution – where applicant originally brought application for stay pursuant to r 761(2) or r 800 Uniform Civil Procedure Rules 1999 (Qld) – where applicant conceded during hearing that neither rule could apply and that inherent jurisdiction of this Court would suffice – where applicant/defendant amended application during hearing to request an order staying execution of the orders of the learned trial judge conditioned upon the prompt application for an order setting off its assessed costs payable by the respondent/plaintiff against the sums it is required to pay the respondent/plaintiff

Rules of the Supreme Court 1900 (Qld), O 91 r 11
Uniform Civil Procedure Rules 1999 (Qld), r 761(2), r 800, Ch 9 Pt 5

Asia Pacific International Pty Ltd v Peel Valley Mushrooms Ltd [1999] 2 Qd R 458, considered
Edwards v Hope (1885) 14 QBD 922, cited
JC Scott Consturctions v Mermaid Waters Tavern Pty Ltd (No.2) [1983] 2 Qd R 255, followed
Pringle v Gloag (1879) 10 Ch D 676, considered
Puddephatt v Leith (No.2) [1916] 2 Ch 168, cited
Reid v Cupper [1915] 2 KB 147, cited

COUNSEL:

FG Forde for the applicant
G Deihm for the respondent

SOLICITORS:

McMahons National Lawyers for the applicant
Biggar & Maguire for the respondent

JERRARD JA: This matter was an application by MMI General Insurance Limited for an order staying the enforcement of a judgment of His Honour Justice Dutney dated 27 June 2002. The respondent was the successful…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] QCA 347
Decision Date: 6 September 2002

CaseChat Overview and Summary

The appeal was brought by MMI General Insurance Limited, the defendant in the original proceedings, against a decision of the Supreme Court of Queensland. The defendant appealed the refusal of its application for a stay of execution of certain orders made by the trial judge. The plaintiff, Elphick, had been awarded damages and costs by the trial judge, and the defendant sought to stay enforcement of these orders until a set-off of its own costs against those awarded to the plaintiff could be determined. The defendant initially sought the stay under certain rules of the Uniform Civil Procedure Rules 1999 (Qld), but during the hearing conceded that neither rule applied and that the court’s inherent jurisdiction should be exercised instead.

The central legal issue before the court was whether the defendant was entitled to a stay of execution of the trial judge’s orders, pending the determination of an application to set off its own costs against the costs awarded to the plaintiff. The defendant argued that the inherent jurisdiction of the court should be exercised to grant such a stay, particularly because the amount in dispute was relatively small and the plaintiff was not prejudiced by the delay. The court had to consider whether the defendant's application met the criteria for such a stay, including the balance of convenience and the potential for prejudice to either party.

The appeal was allowed, and the orders of the trial judge were stayed, subject to certain conditions. The defendant was required to promptly apply for an order setting off its costs against the costs awarded to the plaintiff, and to prosecute this application without delay. The stay would remain in effect until the application for set-off was determined. Additionally, the defendant was ordered to pay the plaintiff's costs of the appeal. The court found that the defendant's application met the necessary criteria for a stay of execution and that the balance of convenience favoured granting the stay. The potential for prejudice to the plaintiff was considered minimal, given the relatively small amount at stake and the defendant's prompt action in pursuing its application for set-off.

Orders

Orders of the court

1. That further enforcement of the orders made by His Honour Justice Dutney on 27 June 2002 be stayed conditioned upon:

(a) the applicant MMI General Insurance Limited making application within seven days of the date hereof for an order setting off the amount of $40,000.00 of the damages it was ordered on 27 June 2002 to pay to the respondent and the respondent’s costs it was ordered on 9 July 2002 to pay against its costs the respondent was ordered on 9 July 2002 to pay; and

(b) further conditioned upon the applicant prosecuting that application without delay.

2. The stay ordered herein be in force until judgment on the application described herein.

3. That the applicant pay the respondent’s costs of and incidental to this application such costs to be assessed on the standard basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Elphick v MMI General Insurance Ltd & Anor [2002] QCA 347
PARTIES:	JASON DREW ELPHICK (plaintiff/respondent) v MMI GENERAL INSURANCE LIMITED ACN 000 122 850 (first defendant/applicant) GRAHAM JOSEPH ELLIOT (second defendant)
FILE NO/S:	Appeal No 7316 of 2002 SC No 22 of 1999
DIVISION:	Court of Appeal
PROCEEDING:	Application for Stay of Execution
ORIGINATING COURT:	Supreme Court at Rockhampton
DELIVERED ON:	6 September 2002
DELIVERED AT:	Brisbane
HEARING DATE:	4 September 2002
JUDGE:	Jerrard JA
ORDERS:	1. That further enforcement of the orders made by His Honour Justice Dutney on 27 June 2002 be stayed conditioned upon: (a) the applicant MMI General Insurance Limited making application within seven days of the date hereof for an order setting off the amount of $40,000.00 of the damages it was ordered on 27 June 2002 to pay to the respondent and the respondent’s costs it was ordered on 9 July 2002 to pay against its costs the respondent was ordered on 9 July 2002 to pay; and (b) further conditioned upon the applicant prosecuting that application without delay. 2. The stay ordered herein be in force until judgment on the application described herein. 3. That the applicant pay the respondent’s costs of and incidental to this application such costs to be assessed on the standard basis.
CATCHWORDS:	APPEAL AND NEW TRIAL – APPEAL PRACTICE AND PROCEDURE – QUEENSLAND – STAY OF PROCEEDINGS – GENERAL PRINCIPLES AS TO GRANT OR REFUSAL – where applicant appeals against judgment of Supreme Court which refused application for stay of execution – where applicant originally brought application for stay pursuant to r 761(2) or r 800 Uniform Civil Procedure Rules 1999 (Qld) – where applicant conceded during hearing that neither rule could apply and that inherent jurisdiction of this Court would suffice – where applicant/defendant amended application during hearing to request an order staying execution of the orders of the learned trial judge conditioned upon the prompt application for an order setting off its assessed costs payable by the respondent/plaintiff against the sums it is required to pay the respondent/plaintiff Rules of the Supreme Court 1900 (Qld), O 91 r 11 Uniform Civil Procedure Rules 1999 (Qld), r 761(2), r 800, Ch 9 Pt 5 Asia Pacific International Pty Ltd v Peel Valley Mushrooms Ltd [1999] 2 Qd R 458, considered Edwards v Hope (1885) 14 QBD 922, cited JC Scott Consturctions v Mermaid Waters Tavern Pty Ltd (No.2) [1983] 2 Qd R 255, followed Pringle v Gloag (1879) 10 Ch D 676, considered Puddephatt v Leith (No.2) [1916] 2 Ch 168, cited Reid v Cupper [1915] 2 KB 147, cited
COUNSEL:	FG Forde for the applicant G Deihm for the respondent
SOLICITORS:	McMahons National Lawyers for the applicant Biggar & Maguire for the respondent