Higgins v Pretorius (No 4) - [2025] ACTSC 399

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Higgins v Pretorius (No 4)
Citation:	[2025] ACTSC 399
Hearing Date:	28 August 2025
Decision Date:	5 September 2025
Before:	Muller AJ
Decision:	(1) Further to the orders of the Court made on 12 June 2025, the stay on the operation of the judgment entered on 7 April 2025 is removed. (2) The defendant is to pay the plaintiff’s costs of the application.
Catchwords:	JURISDICTION, PRACTICE AND PROCEDURE – STAY ORDERS – Application to set aside stay of judgment – stay instituted pending defendant’s appeal and for defendant to obtain financial advice – where defendant in loan agreement with husband at time stay instituted – defendant continued to draw down loan after stay imposed – court unaware of loan at time of stay – defendant has not obtained financial advice – defendant applied for bankruptcy – circumstances under which stay imposed substantially changed – stay order removed JURISDICTION, PRACTICE AND PROCEDURE – FREEZING ORDERS – Application to restrain defendant’s husband from taking certain actions – freezing order unnecessary where stay removed – no freezing order made
Legislation Cited:	Bankruptcy Act 1966 (Cth), ss 27, 60 Court Procedures Rules 2006 (ACT), r 5301
Cases Cited:	Alexander v Cambridge Credit Corporation (1985) 2 NSWLR 685 at 694 Dreamtime Supply Company Pty Ltd v Steadfast ICT Security [2021] ACTCA 31 Higgins v Pretorius (No 2) [2025] ACTSC 242
Parties:	Judith Frances Higgins ( Plaintiff) Annemie Pretorius ( Defendant)
Representation:	Counsel PA Tierney ( Plaintiff) A Opas ( Defendant)
Solicitors AC Lawyers ( Plaintiff) Moray & Agnew ( Defendant)
File Number:	SC 420 of 2023

MULLER AJ:

Introduction

1․This conflict between neighbours returns to the Court in extraordinary circumstances. On 15 March 2022, a discussion between the plaintiff and the defendant on the nature strip abutting their adjoining properties suddenly escalated. The defendant struck the plaintiff on the side of her head with a rubber mallet. The plaintiff was hospitalised as a result of her injuries and now requires ongoing treatment.
2․The defendant subsequently pleaded guilty to a charge of assault occasioning actual bodily harm. She was sentenced to a period of six months’ imprisonment, which was fully suspended. She was also subject to a 12-month good behaviour order.
3․The plaintiff commenced this proceeding against the defendant for an intentional tort in the form of battery. The defendant admitted liability for the assault and the matter proceeded as an assessment of damages before Ainslie-Wallace AJ over 14 to 16 October 2024. On 28 February 2025, her Honour entered judgment in favour of the plaintiff; following the assessment of damages, the plaintiff was awarded the sum of $1,090,003.04 on 7 April 2025.
4․The defendant filed a notice of appeal from her Honour’s decision assessing damages on 4 April 2025. The parties understand the appeal is likely to be listed for hearing in November 2025.
5․The defendant subsequently filed an application to stay the operation of the judgment for damages pending resolution of the appeal. That application…

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.

Continue reading Higgins v Pretorius (No 4)

Details

AGLC: Higgins v Pretorius (No 4) [2025] ACTSC 399
Case: [2025] ACTSC 399
Decision Date: 5 September 2025

CaseChat Overview and Summary

In the case of Higgins v Pretorius, the plaintiff sought to set aside a stay order that had been placed on the operation of a judgment rendered on 7 April 2025. The stay had been instituted pending the defendant’s appeal and for the defendant to obtain financial advice. At the time of the stay, the court was unaware that the defendant had drawn down on a loan with her husband. The defendant subsequently applied for bankruptcy and did not obtain the financial advice as required by the stay order. The plaintiff argued that the circumstances under which the stay had been imposed had substantially changed, warranting its removal.

The court was required to determine whether the stay order should remain in place or be set aside. It needed to consider the changes in circumstances since the stay was imposed, including the defendant's drawdown on the loan and application for bankruptcy. The court also had to evaluate whether the defendant had complied with the condition to obtain financial advice. The plaintiff argued that these changes meant the stay was no longer justified and should be removed.

The court found that the circumstances had indeed changed significantly since the stay order was made. The defendant's drawdown on the loan and subsequent application for bankruptcy demonstrated that the financial situation had deteriorated, which was not the case when the stay was imposed. Additionally, the defendant had not obtained the required financial advice. Given these changes, the court concluded that the stay was no longer justified and ordered its removal. The court also determined that a freezing order against the defendant's husband was unnecessary as the stay had been lifted.

The court ordered that the stay on the operation of the judgment entered on 7 April 2025 be removed. It further directed that the defendant pay the plaintiff’s costs of the application. No freezing order was made in relation to the defendant’s husband as the stay had already been lifted.

Orders

Orders of the court

(1) Further to the orders of the Court made on 12 June 2025, the stay on the operation of the judgment entered on 7 April 2025 is removed.

(2) The defendant is to pay the plaintiff’s costs of the application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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