Green v Russco Agencies Pty Ltd

[1995] QCA 379

[1995] QCA 379

COURT OF APPEAL

MACROSSAN CJ
FRYBERG J

HELMAN J

Appeal No 118 of 1995

JOHN GREEN	Respondent (Plaintiff)
and
RUSSCO AGENCIES PTY LTD	Appellant (Defendant)

BRISBANE
..DATE 01/08/95
THE CHIEF JUSTICE: The Court has reached a conclusion. I
gather that by majority it favours the grant of a stay.
Speaking for myself, I will outline some of the facts. This
is the position.

The original plaintiff has a judgment for some $390,000. It desires to obtain the benefit of that judgment and the material shows that if it is paid over, such amounts as come to the plaintiff himself will be carefully husbanded. He says he has plans for conservative investment for it and there is no reason shown to doubt that.

However some $40,000 is the approximate amount of the
plaintiff's solicitors' costs and if the judgment sum is
paid over to the plaintiff the proposal is that that $40,000
would be paid to his solicitors to cover their costs.

The difficulty that the appellant, the original defendant, would face if it succeeds in the appeal is that the $40,000 paid over to the plaintiff's solicitors would be hard to recall. There would be no right to get it back from the solicitors of course and the plaintiff's other assets would then have to be looked at.

He is a 50 year old person apparently placed in stable
circumstances. He has a joint tenancy in a house which is
worth some $110,000. He is debt free, he has a car,
furniture and other effects.
To reduce the impact of the point made on behalf of the
appealing defendant the plaintiff's counsel has indicated
that the plaintiff's solicitors would personally undertake
to pay back half of any amount paid to them as costs out of
the judgment sum if it is paid over. The effect of this
would be in round terms that if the defendant succeeds in
the appeal it is reasonably secure in its prospects of
recouping all of the judgment sum paid over except for some
$20,000 and as to that it would have to pursue the
plaintiff's interests in his joint tenancy, car and the rest
of it.

In those circumstances I would not conclude that the appellant/defendant has shown enough to gain a stay, the onus being on the appellant/defendant. I would refuse the application for a stay speaking for myself.

FRYBERG J: In my judgment the material in the present case discloses that the appealing defendant would have no practical chance of recovering any moneys to the extent of either $20,000 or approximately $40,000 as the case may be.

It does not seem to me that when the sole substantial asset

of the plaintiff is his home and he is a pensioner it is
realistic to talk of executing on his home and causing him
to sell when the appellant is effectively the Workers
Compensation Board. To the extent therefore that money is
not to be secured by investment while the appeal is pending,
the appeal would be rendered nugatory by the payment of
money as the solicitor's fees.
The appeal can on the material be heard as early as
September or October, that is to say in about three or four
months time. The case has been pending since 1986. It
seems to me that when effectively the sole reason for
wanting the money paid over is to effect payment of
solicitors who have been carrying the action up until now
special circumstances within the meaning of the
considerations advanced in JC Scott Constructions v Mermaid
Waters Tavern Pty Ltd have been shown.
This is not the case to consider whether what was said in
that decision represents the law any longer. I note that a
completely different view was taken of a similar rule by the
Court of Appeal division of the Supreme Court of New South
Wales in Alexander v Cambridge Credit Corporation Limited
and that that latter view may represent the law in
Queensland having regard to the fact that the special
circumstances test was not applied by this Court in Moran v
Nominal Defendant an unreported decision given on 3 May
1995. This is not the occasion to consider whether the
decision in Mermaid Waters should stand.

In my view on the facts of the case sufficient circumstances have been shown to warrant the granting of the stay.

HELMAN J: I agree with the reasons given by Mr Justice

Fryberg and the order proposed by him.

...
THE CHIEF JUSTICE: Stay pending the determination of the
appeal in the Court of Appeal or further order and the costs
of the application to be the costs in the appeal.

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