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 1999DIVISION:
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 5Asia 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, citedCOUNSEL:
FG Forde for the applicant
G Deihm for the respondentSOLICITORS:
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…
Keep reading for free
Create a free CaseChat account to read Elphick v MMI General Insurance Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2002] QCA 347
- Decision Date
CaseChat Overview and Summary
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.