Garlick v Scordilis (No 2)

[1999] TASSC 50

[1999] TASSC 50

CITATION:              Garlick v Scordilis (No 2) [1999] TASSC 50

PARTIES:  GARLICK, Cameron Gary

v
SCORDILIS, Nick (No 2)

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  ORIGINAL
FILE NO/S:  641/1994
DELIVERED ON:  7 May 1999
DELIVERED AT:  Hobart
HEARING DATE:  3 May 1999
JUDGMENT OF:  Cox CJ

CATCHWORDS:

REPRESENTATION:

Counsel:
           Appellant:  D J Gunson
           Respondent:  M D Docking
Solicitors:
           Appellant:  Gunson Pickard & Hann
           Respondent:  M D Docking

Judgment  Number:  [1999] TASSC 50
Number of paragraphs:  8

Serial No 50/1999
File No 641/1994

CAMERON GARY GARLICK v NICK SCORDILIS (NO 2)

REASONS FOR JUDGMENT  COX CJ

7 May 1999

1. By a consent judgment dated 30 June 1994, it was adjudged that the plaintiff recover against the defendant damages to be assessed.  The cause of action was in negligence for personal injuries received when the plaintiff was a passenger in a car driven by the defendant whom the Motor Accidents Insurance Board is, by virtue of the Motor Accidents (Liabilities and Compensation) Act 1973 ("the Act"), s14, bound to indemnify.

1. The matter proceeded to trial as an assessment of damages.  On 24 December 1998 I assessed them in the sum of $25,103, published my reasons (No 170/1998) and pronounced that there be judgment against the defendant for that sum.  The issue of costs was reserved, there having been, I was told, an offer of compromise for a sum greater than the damages assessed.  An appeal to the Full Court against the assessment was lodged by the plaintiff on 14 January 1999.  On 25 January 1999, the plaintiff took out judgment against the defendant for $25,103.  The judgment bears date 24 December 1998 and recites the reservation of the question of costs.  It is common ground that no part of the judgment has been satisfied.

1. The defendant sought to bring on the unresolved issue of costs by a letter to the Registry in March 1999 and the application came before me on 3 May.  Having been informed that an offer of compromise had been made by the defendant on 16 June 1997 for a sum greater than the amount awarded, I ordered, pursuant to O24A, r11 that the defendant pay the plaintiff's taxed costs up to and including 16 June 1997 and that the plaintiff pay the defendant's taxes costs thereafter.

1. The plaintiff then sought an order under the Act, s15(2) which is in the following terms:

"15     (1)      …

(2)      Where judgment has been obtained for payment of any sum for which the Board is bound under this Part to indemnify the person against whom the judgment was obtained and that judgment is not satisfied in full within one month after it is entered, the court in which the judgment was obtained may, on the application of the judgment creditor, direct that that judgment be entered against the Board for the like sum."

The defendant countered this with an application that execution be stayed on the judgment.  Mr Docking for the defendant (and the Board) submitted that the costs payable to the plaintiff in respect of the action up to June 1997 would be far outweighed by those payable to the defendant in respect of the action thereafter, the trial of which lasted some six days, with the defendant calling an interstate expert witness.  He submitted that if the Board were required to pay the judgment debt of $25,103 without deduction of anything in respect thereof, the balance of the defendant's costs after set-off of any payable to the plaintiff might never be recovered. 

1. For the plaintiff, Mr Gunson argued that there was no power to stay execution on such a basis.  He distinguished it from the power to stay proceedings on a judgment in respect of which a party appealing was liable to pay.  In my opinion, there are sound reasons in justice why there should be a stay of execution until both parties have had the opportunity to tax their costs and the net amount payable under the judgment can be determined.  It would be most unjust, in my opinion, if the plaintiff, being liable to pay substantial costs to the defendant or his statutory insurer, should be entitled to receive and expend the whole amount of the damages assessed and deprive himself of the ability to meet the costs payable.

1. There is specific power to make such an order.  Order 47, r17 provides:

   "17     Every person to whom any sum of money or any costs shall be payable under a judgment or order shall, so soon as the money or costs shall be payable, be entitled to sue out one or more writ or writs of fieri facias to enforce payment thereof, subject nevertheless as follows:¾

   (a)If the judgment or order is for payment within a period therein mentioned, no such writ as aforesaid shall be issued until after the expiration of such period; and

   (b)The Court or a judge may, at or after the time of giving judgment or making an order, stay execution until such time as it or he shall think fit."

   The power to stay execution recognised in par(b) is derived from the English RSC, O42, r19 and can be found in other jurisdictions (cf, RSC Victoria, r66.16 and RSC Queensland, O47, r18).  Williams, Civil Procedure Victoria (I 66.16.15), comments that the discretion is a wide one, citing Herring CJ in Joskovitz v Bonnick [1964] VR 654 at 656.

1. In my view, there should be a stay until the net amount payable is determined.  The defendant (Board) must, of course, use due diligence in taxing the costs payable to it.  The plaintiff would be well advised to do likewise.  Mr Docking has asked for a stay of 14 days and that is what I will grant. 

1. The plaintiff is entitled to an order that judgment be entered against the Board in the same terms as that entered against the defendant driver and execution on that judgment is stayed for a period of 14 days.