Higgins v Pretorius (No 2)

[2025] ACTSC 242

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Higgins v Pretorius (No 2)

Citation: 

[2025] ACTSC 242

Hearing Date: 

16 May 2025

Decision Date: 

12 June 2025

Before:

Ainslie-Wallace AJ

Decision: 

See [45]

Catchwords: 

CIVIL LAW – PRACTICE AND PROCEDURE – Application to stay operation of judgment pending resolution of the appeal – where applicant uninsured – applicant gave evidence that she cannot presently pay judgment sum – where applicant has not yet obtained financial advice about possible mechanisms to pay judgment sum – whether real risk of prejudice to applicant, were stay not granted – whether appeal raises serious issue for determination – parties provided proposed conditions of stay – conditions of stay ensure applicant cannot alter her financial position to the respondent’s detriment – consideration of balance of convenience between parties – stay granted

Legislation Cited: 

Court Procedures Rules 2006 (ACT) r 5301

Cases Cited: 

Alananzeh v Zgool Form Pty Ltd (No 2) [2024] ACTSC 258
Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685
Dreamtime Supply Company Pty Ltd v Steadfast ICT Security [2021] ACTCA 38
Hendricks v El Dik (No 5) [2016] ACTSC 302
Michael Hill Jeweller (Australia) Pty Ltd v Gispac Pty Ltd [2024] NSWCA 128

Parties: 

Annemie Pretorius ( Applicant)

Judith Frances Higgins ( Respondent)

Representation: 

Counsel

K Weir ( Applicant)

P Tierney ( Respondent)

Solicitors

Moray & Agnew ( Applicant)

AC Lawyers ( Respondent)

File Number:

SC 420 of 2023

AINSLIE-WALLACE AJ

Introduction

1․On 28 February 2025 judgment was delivered in an action for damages for personal injuries sustained by the Plaintiff after having been struck on the head with a mallet by her neighbour, the Defendant.  The proceedings were conducted as an assessment of damages, the liability was admitted.

2․Verdict for the Plaintiff in the sum of $1,090,003.04 was entered on 7 April 2025.

3․The Defendant is uninsured and thus the burden of the judgment sum falls on her to meet from her own resources.

4․On 28 March 2025 the Defendant filed a Notice of Appeal against the judgment.

5․On 28 April 2025, the Defendant (the Applicant) by application sought a stay of the judgment pending the hearing and resolution of the appeal.

The Applicant's Evidence

6․The evidence on the stay comprised an affidavit of the Applicant on which she was cross-examined.

7․The Applicant deposed to her financial circumstances which are that she is a joint owner with her husband of the property in which she lives and which is subject to a mortgage; she has minimal savings and a credit card debt.  The Applicant is employed and earns $134,865 gross per annum.  She also deposes to being liable for medical expenses for spinal surgery conducted in Thailand, although it was not at all clear whether those costs have already been paid.

8․The Applicant further asserts that given the poor relationship between her and the Plaintiff (the Respondent), she believes that if she paid the judgment sum or part of it in satisfaction of the judgment, she may not be…